Under section 69(14) of the Workers Rehabilitation and Compensation Act 1988, a worker’s normal weekly earnings are to be calculated by reference to the worker’s average weekly earnings over a period ‘before the commencement of the period of incapacity’.
In Menzies v Hays Specialist Recruitment (Australia) Pty Ltd  TASSC 30, Mr Menzies had ceased work on 23 May 2021 due to back pain, but his first day of incapacity certified in a medical certificate was three months later on 23 August 2021.
The issue before the Court was whether, for the purpose of calculating Mr Menzies’ normal weekly earnings, the period of incapacity in section 69(14) commences upon a worker’s actual incapacity for work or on the first certified day of incapacity. Mr Menzies sought the former interpretation, and his employer sought the latter interpretation.
Blow CJ confirmed that section 69(14) refers to a worker’s actual incapacity for work. In reaching this conclusion, Blow CJ reminds us that medical certification does no more than ‘support’ (i.e. evidence) the presence of incapacity. The time of commencement of incapacity resulting from a compensable injury is a question of fact, which may or may not be evidenced by a medical certificate.
If you have any questions about the issues raised in this case law update, feel free to contact our insurance litigation team.