10 September 2023

Terminating or Varying Workers Compensation

The circumstances under which an employer may terminate or vary a worker’s entitlement to workers compensation have been the subject of argument between employers, insurers, and workers since the idea of compensating workers for work related injuries caught on in the early 1900s.

Subject to a few exceptions, in Tasmania, the circumstances in which an employer may terminate the payment of weekly payments of compensation (without disputing liability) is found in s 86 of the Workers Rehabilitation and Compensation Act 1988. The power to review and vary payments is found in s 88 of the same Act.

As a firm that only acts for injured workers, we might be biased, but in recent years there has been a shift in the interpretation and application of ss 86 & 88 in favour of employers and their insurers. Unfortunately, the cost of litigating workers compensation disputes means that many decisions by employers/insurers to terminate payments under s 86 are not challenged, and s 88 referrals are compromised in the conciliation process.

Phillips Taglieri acted for the worker in W v Mosaic Support Services (No. 2) [2022] TASCAT 153 and challenged the medical certificate upon which the employer relied under s 86(1)(c). The employer also made a referral to the Tribunal pursuant to s 88 to reduce the worker’s payments in the event the medical certificate was found to be invalid.

If you would like to read the decision of the Tasmanian Civil and Administrative Tribunal at first instance, click here.

The employer appealed the Tribunal’s decision to the Supreme Court of Tasmania with Marshall AJ dismissing the appeal. If you would like to read the decision on appeal, click here.

These decisions reinforce the heavy evidentiary burden placed upon an employer when terminating weekly payments under s 86(1)(c). The valid termination of weekly payments is not as simple as having a medical practitioner certify one of the matters in s 86(1)(c), rather the employer/insurer should carefully consider all of the evidence available to determine whether a valid termination is achievable.

In terms of s 88, the decisions make very clear that it is simply not enough for an employer to assert that theoretical job opportunities exist, rather evidence of a fully informed employer willing to give the worker a job that accommodates the worker’s injuries is required. Incidentally, this was the point made in Kidd v C [2006] TASWRCT 10 but arguably the point became lost in recent years.

This litigation has been crucial to strengthening the rights of workers against termination or reduction of compensation without a proper evidentiary basis.




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