Tasmanian case confirmed an insurer is liable to cover weekly payments where a late medical certificate of capacity has been provided
Published on March 26, 2025 by Lucinda Gunning and Ijaz Careem
On 5th August 2024, the Supreme Court of Tasmania made a decision confirming that an insurer is liable to back pay an employee for the whole period in which a backdated medical certificate is provided. This decision was made by Chief Justice Blow in the case of Pearson v State of Tasmania [2024] TASSC 41.
In the case of Pearson, liability was accepted, and the worker had provided a series of medical certificates certifying her as totally incapacitated for work from the time of her claim until 18 May 2023. Her next medical certificate was dated 14 June 2023 and was backdated, certifying that the worker was incapacitated for work from 18 May 2023 to 12 July 2023.
The employer treated this new medical certificate as a new claim for compensation, relying on s69 (13) of the Workers Rehabilitation and Compensation Act 1988 (“the Act”), which provides:
(13) 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.
By treating the certificate as a new claim, the insurer was able to reconsider liability and issue a determination pursuant to s81A. Section 81A allows an insurer to dispute liability to make payments where there is a “reasonably arguable case” for disputing liability, which is a low evidentiary threshold for insurers to overcome. Importantly, the insurer also ceased payments to the worker from 18 May 2023, despite not issuing their section 81A notice until 7 August 2023.
The worker appealed this decision on the grounds that the medical certificate dated 14 June 2023 was still a medical certificate for the purposes of s69(1) and that therefore she was entitled for payments of weekly compensation for the period mentioned in the certificate. Section 69(1) provides:
(1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is–
(a) in the case of the total incapacity of the worker for work, weekly payments equal to–
(i) the normal weekly earnings of the worker; or
(ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity–
whichever is the greater; or
(b) in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker’s weekly payment calculated in accordance with paragraph (a) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity.
The court held that when a s69(1) medical certificate expires and there is an interval of more than 14 days before another medical certificate is issued, the insurer is entitled to treat the provision of the certificate as a “new claim”. Therefore, by virtue of s81A(1), the insurer has 84 days from the date in which the new certificate is issued to deny liability for the entirety of the claim, if there is a “reasonably arguable case” for doing so.
However, in Pearson, the insurer did not refer the matter to the Tribunal immediately upon receipt of the new medical certificate. The section 81A notice was issued on 7 August 2023, which was within the 84-day timeframe to issue the decision. It was therefore held that where a medical certificate has been provided after an interval of 14 days, the 84-day period to determine liability restarts, however pursuant to s69(1) the worker remains entitled to payments for weekly benefit payments and medical expenses for the entirety of the period, including that covered by the backdated certificate, until the s81A is validly issued.
Therefore, based on this case, the insurer is liable to cover weekly benefit payments, including backpay, where a late medical certificate has been provided. However, it is crucial to remember that providing a medical certificate more than 14 days late allows the insurer to treat the certificate as a new claim and therefore, they have 84 days from the date the late medical certificate was provided to deny liability for the entirety of the claim.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. You can also use our Personal Injury Claim Check at any time here.
