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The Full Court of the Supreme Court of Tasmania has dismissed an employer’s appeal regarding and employer’s obligation to pay weekly payments. In a unanimous judgment, the court in State of Tasmania v Pearson [2026] TASFC ruled that a medical certification gap exceeding 14 days does not interfere with an employer’s obligation to pay weekly payments upon receipt of a new certificate of capacity.

Background

Ms Pearson was employed by the Department for Education Children and Young People and made a workers compensation claim after becoming incapacitated for work on 14 November 2022 due to stress and exhaustion.

Her employer did not dispute liability to pay compensation within the statutory time period of 84 days, and her claim was taken to be accepted by her employer. Ms Pearson continued to provide medical certificates in the approved form certifying her as totally incapacitated for work.

However, after her certificate of capacity expired on 18 May 2023, Ms Pearson did not provide a further medical certificate until 14 June 2023, which certified her as incapacitated from 18 May 2023 to 12 July 2023.

Because the later medical certificate was provided more than 14 days after the expiry of the previous certificate, the employer elected to treat the certificate as a new claim under section 69(13) of the Act and dispute the claim.

Importantly, the employer did not pay Ms Pearson weekly payments for the period of 18 May 2023 to 12 July 2023.

On 7 August 2023, TASCAT found that the employer had a reasonably arguable case and that compensation payments ought not be paid to Ms Pearson.

However, Ms Pearson applied to TASCAT seeking an order that the employer pay her for the period for which she was medically certified as incapacitated from 18 May 2023 up until the 12 July 2023.

Statutory scheme

In Tasmania, where a worker is certified by a medical practitioner as being totally incapacitated for work, the employer must pay the worker weekly payments for that period of incapacity in the certificate: subsections 69(1) and s81(1) of the Act.

The employer has 84 days from receipt of the initial claim form to dispute liability to pay the worker weekly payments, or else the claim is taken to have been accepted by the employer: s 81A of the Act.

However, in 2001 the Tasmanian parliament inserted subsection 69(13) into the Act which provides:

If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies.

A further section relevant to this case is s81AA of the Act which provides that an employer who pays a worker weekly payments is not taken to be an admission by the employer of liability. Importantly, subsection 81AA(4) states that this section does not apply to a claim in respect of which section 69(13) applies.

TASCAT determination

The question for TASCAT was whether the employer who had elected to treat the certificate of 14 June 2023 as a claim to which s81A applies, was liable to pay weekly payments prior to the determination of liability.

The worker argued that while an employer may treat a certificate to which that subsection applies as a claim for compensation to which s 81A applies, it is still a certificate for the purpose of s 69(1).

The employer argued that there is no obligation to pay weekly payments on a new certificate which the employer disputes under s 69(13) until liability is determined. The employer said to do so runs the risk of being construed as an admission of liability and possibly estopping the employer from disputing liability pursuant under the Act.

Deputy President Clues, who found for the employer, stated that when an employer receives a certificate to which s69(13) applies it is treated as a new claim but not as one to which the obligations to re-commence weekly payments arise.

Whether the employer should pay weekly payments for the certified period was a matter for a formal challenge to the declinature under s 42 of the Act.

Worker’s appeal

Ms Pearson appealed the decision of the Deputy President to the Supreme Court. Ms Pearson contended, although the employer had the right to treat it as a claim for compensation to which s 81A applied, it was still a medical certificate for the purposes of s 69(1).

Regarding the Deputy President’s reasons, CJ Blow said at [17]:

The learned Deputy President was correct when she said, at [19] that ss 81(1) and 81AB do not apply to a s 69(13) claim. However that is not the end of the matter. The provisions of s 69(1) apply in relation to the initial claim, and the liability to pay compensation pursuant to s 69(1) arises after a period in abeyance. Section 81AB applied to the initial claim in this case, and the employer’s liability under s 69(1) was established by operation of s 81AB in relation to that initial claim.

As regards to the employer’s arguments that the payment of weekly payments in the circumstances could be taken as an admission of liability, his Honour said:

Since an employer has no choice, it could not be reasonably open to any court or tribunal to treat the resumption of weekly payments as an admission that the worker continued to be qualified to receive them. The inapplicability of s 81AA(1)(a) of the Act therefore did not provide a reason for any of the other provisions of the Act to be interpreted in the manner contended for by the employer.

His Honour also observed that if the employer’s contention were correct and an employer neither elected to treat a certificate as a claim under s69(1) nor waived its right to do so, the worker would need to wait 84 days with weekly payments in abeyance. His Honour said at [16]:

The latter situation would be absurd, contrary to the legislative intention underlying ss 81 and 81A, and contrary to the principle that workers compensation legislation, as beneficial legislation, ought to be construed in a manner favourable to workers.

His Honour allowed the appeal and ordered the employer pay the weekly payments for the period in the certificate 18 May 2023 to 12 July 2023.

Employer’s appeal

The employer appealed the decision of CJ Blow to the Full Court of the Supreme Court contending that a payment of compensation in respect of the period covered by the certificate dated 14 June 2023 would amount to an admission of liability, and that the Act should therefore not be construed so as to require payments of weekly compensation to be made upon the presentation of a medical certificate to which s 69(13) applies.

Brett J, with whom Cuthbertson and Wood JJ agreed, disagreed that subsection 8AA(4) removes the protection afforded to payments made pending resolution of a s 81A dispute by preventing such payments from being construed as an admission of liability. His Honour said:

If the legislature had intended to suspend the obligation of the employer to make weekly payments in accordance with this provision on a certificate delivered after a gap in certification of more than 14 days, it could easily have given effect to this intention by saying so in the legislation. It did not do so. On the contrary, the amendments to s 81 are consistent with the intention of the legislature to require payments to be made notwithstanding a dispute under s 81A, whenever it arises. Section 81AA (4) excludes s 81AA from a claim to which 69(13) applies. Had the legislature intended that s 69(1) be excluded in such a case, it would have been a simple matter to provide expressly in that regard. It is unlikely that it would have intended to give effect to this outcome without express words and by the obscure and indirect pathway contended for by the appellant.

The Full Court unanimously dismissed the employer’s appeal.

Implications

Workers on an accepted claim need to continue remember that when there a gap in certification, weekly payments are held in abeyance. They also need to remember that a gap in certification of more than 14 days allows the employer to dispute a previously accepted claim within 84 days (these are non-contentious features of the legislation).

However, the decision in State of Tasmania v Pearson clarifies that when an employer does take such action, it is still obliged to pay the worker weekly payments until liability regarding any dispute is determined.

This article was published on 4 of September by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now.