Apollo Nominees v Thornton

[2002] TASSC 93

[2002] TASSC 93

CITATION:              Apollo Nominees v Thornton [2002] TASSC 93

PARTIES:  APOLLO NOMINEES PTY LTD (ACN 009 512 225)
  v
  THORNTON, Peter Marcus

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 80/2000
DELIVERED ON:  12 November 2002
DELIVERED AT:  Hobart
HEARING DATES:  22 October 2002
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Assessment and amount of compensation - Weekly payments of compensation - Other matters - Original claim accepted - Further certificate claiming new condition relating to same event - Jurisdiction on referral.

Workers Rehabilitation and Compensation Act1988 (Tas), s81A.

State of Tasmania v Cook (2000) 9 Tas R 191; State of Tasmania v Parsons [2002] TASSC 59; Swan v Miller [2001] TASSC 15; State of Tasmania v West [2001] TASSC 62, referred to.
Aust Dig Workers Compensation [200]

REPRESENTATION:

Counsel:
           Appellant:  M K Wilkins
           Respondent:  S Taglieri
Solicitors:
           Appellant:  Page Seager
           Respondent:  Phillips Taglieri

Judgment Number:  [2002] TASSC 93
Number of Paragraphs:  14

Serial No 93/2002
File No LCA 80/2000

APOLLO NOMINEES PTY LTD (ACN 009 512 225)
v PETER MARCUS THORNTON

REASONS FOR JUDGMENT  SLICER J

12 November 2002

1. On 21 December 2000, the respondent worker (in the course of his employment) suffered an injury to his knees.  He made a claim for compensation stating the circumstances as:

"Lost balance and fell into wheelbarrow crushing my legs"

with the injury described as:

"Burn and grazes to calfs [sic] crushed knees."

1. The appellant employer did not dispute entitlement or liability and commenced to pay compensation.  The respondent continued to provide medical certification in similar form with minor alterations to language, such as "friction burns and soft tissue injury to knees".  On 4 July 2002, a further certificate was provided stating incapacity for work for the period 2 July to 5 August 2002, stating the symptoms to be:

"Bilateral knee pain.  Depressed mood and poor memory."

1. The provisional/final diagnosis (not marked by the certifying medical practitioner) was stated to be:

"Crush injury to leg.  Depressed mood."

The certificate, par4, contains the wording following the terms "medical diagnosis", "(if changed, give reasons)".  The certification did not address this issue.  However, the certificate stated that a referral had been made for "psychotherapy" to "Lyn Syme" and sought to refer the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") in accordance with the Workers Rehabilitation and Compensation Act 1988, s81A. The appellant, by its notice, gave the reasons for disputing liability as:

"(1)Your claim for compensation by way of a medical certificate dated 4 July 2002 does not substantially relate to the injury that you sustained arising out of and in the course of your employment on 21 December 2000;

(2)Your incapacity is as a result mainly or in part, of depression and memory deficiency which are not as a result of your claim dated 9 January 2001 and are claims for compensation which have not previously been made."

1. The Tribunal determined that it had no jurisdiction to entertain the matter and dismissed the reference.  It stated its reasons in the following terms at par4:

"The medical certificate in dispute repeats the symptoms of previous undisputed medical certificates that the worker was suffering bilateral knee pain and that this was as a result of a crush injury to his legs, however, it includes new presenting symptoms of depressed mood and poor memory and an additional diagnosis of depressed mood. There is no indication given in the medical certificate of any fresh cause of that psychological condition and the certificate is marked as a continuing certificate. The employer adduces no evidence suggestive of any fresh cause although I note that the employer is not obliged to do so if there is sufficient material by way of the worker's own claim documents justify the submission being made. Given the ongoing nature of the worker's incapacity and the continuation of symptoms of pain, it is I believe a reasonable interpretation of the disputed medical certificate to infer that the depressed mood has developed as a result of the worker's ongoing physical complaints and the sequelae of same."

and concluded that:

"In my view therefore, the disputed medical certificate, if a claim for compensation, is a claim in respect to the original injury insofar as it arises out of or is in relation to such injury. In addition, given the findings above, it would also be a subsequent claim in respect of the original injury. Accordingly, by application of the transitional provisions this medical certificate, if a claim for compensation, must be determined in accordance with the law applicable prior to the 1^st July 2001."

1. At the hearing of this appeal, the parties agreed that the Tribunal had incorrectly applied the transitional provisions set out in Sch10, cl 10 of amending legislation (Act 99 of 2000), but that the error has no bearing on the question of interpretation arising in this appeal.

1. The appellant contends that the amendment to the Act, ss80A, 81A(3), 81AA, 81A by Act 99 of 2000, altered or modified the law as stated in cases such as Tubemakers of Australia Limited v Kurz 4/1998; State of Tasmania v Cook (2000) 9 Tas R 191; Pataki v University of Tasmania (1999) 9 Tas R 397. The respondent's position is that the original claim, not being disputed, established entitlement and that the resources available to the appellant were those provided by the Act, ss42, 81A(5), 86 and 88.

1. Between December 2000 and 5 March 2002, it would appear to have been some break in certification, but that dated 5 March was not disputed, and thereafter there was continuity so that the provisions of the Act, s69(13) do not apply.

1. The Act, s25, relevantly provides:

"25 ¾ (1)   If in any employment ¾

(a)a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or

(b)a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree within the meaning of section 3(2A),

his employer is, except as is otherwise provided by this Act, liable to pay compensation …".

1. These provisions governed the respective rights of the parties, both at the time of the claim made in December 2000 and that made in July 2002 and are unaffected by the amendments made by Act 99 of 2000.  The original claim was in respect of an "injury, not being a disease", namely "crushed knees".  The employer, not having disputed the claim became and remains liable to pay compensation for that matter (G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308; State of Tasmania v Parsons [2002] TASSC 59). It may be that the onset of depression referred to in the certificate of July 2002 resulted from the knee injury (Tubemakers of Australia Limited v Kurz (supra)) and that the right to compensation for incapacity vested at the time of the original injury and that the development of a disease as a consequence of the physical injury does not affect "the legal consequence that the physical injuries were the foundation of the worker's right to compensation" (Tubemakers, Crawford J at 6 referring to FAI General Insurance v Morrisson (1993) 2 Tas R 9); but such is a substantive issue not determining procedural requirement.

1. The Act, s80A (inserted by Act 99 of 2000) provides:

"80A ¾ For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer."

It governs the procedural requirements attaching to a claim for an "injury for which the worker has not previously made a claim".

1. In such a case, the employer is required to pay compensation (s81) without admission of liability (s81AA) and entitled to dispute "liability to pay compensation … for an injury referred to in section 81 …" (s81A).  There might be cases where, irrespective of the amendment, the varying language used in the certification shows as a matter of fact continuity of the original claim and the descriptions are those of the one injury (State of Tasmania v West [2001] TASSC 62) and do not permit disputation. In such cases, the employer is required to have recourse to provisions other than s81A. But where a new injury is identified for the first time in a later condition, it permits disputation and reference (State of Tasmania v Cook (supra)).  Counsel for the respondent relied on the decision of Swan v Miller [2001] TASSC 15, a case decided before the insertion of s80A. Irrespective of whether the decision would now apply, given the statutory amendment, Blow J recognised the issue as being factual and involved "a question of degree".

1. The addition to the certificate of the medical diagnosis of "depression" and "memory loss" raised the additional question of whether the condition is "an injury, which is a disease" provided for by the Act, s25(1)(b), requiring separate consideration (ss3(2A), 251A).  The consequence of depression and the referral for "psychotherapy" might have attracted the operation of the Act, PtXI, and require the appellant to meet the costs of such treatment.

1. The effect of the certification constituted a claim "not previously made". The claim might be concurrent and the employer is precluded from referring the physical condition to the Tribunal by virtue of the Act, s81A. If it contends that the incapacity caused by the physical injury no longer exists, then it is entitled to recourse to the Act, s86. But it is entitled to refer the claim of injury being "depression" and "memory loss" to the Tribunal.

1. The appeal ought be upheld.  The order of the Tribunal is set aside and the matter remitted to the Tribunal to be dealt with in accordance with law.