APPM Forest Products v Sutcliffe

[1990] TASSC 157

Serial No B80/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              APPM Forest Products v Sutcliffe [1990] TASSC 157; B80/1990

PARTIES:  APPM FORESTS PRODUCTS
  v
  SUTCLIFFE

FILE NO/S:  LCA53/1990
DELIVERED ON:  24 December 1990
JUDGMENT OF:  Wright J

Judgment Number:  B80/1990
Number of paragraphs:  11

Serial No B80/1990
List "B"
File No LCA 53/1990

APPM FOREST PRODUCTS v SUTCLIFFE

REASONS FOR JUDGMENT  WRIGHT J

24 December 1990

1. This is an appeal from a determination of the Workers' Compensation Commissioner demonstrating yet again some of the pitfalls which may await employers and employees alike, when they seek to utilise the statutory dispute resolution procedures provided for in the Workers Compensation Act 1988.

1. On 1 May 1990, the employer (the present appellant) made application to the Commissioner in the following terms:

"I Neville William Hampton of APPM Forest Products, Tamar Mill, Longreach hereby apply to the Workers' Compensation Commissioner to hear and determine the following:

1Whether the worker Mr Ian Sutcliffe is entitled to benefits under the Act as a result of an injury alleged to have been suffered on the 17th of April 1990.

2Whether section 81(1) applies.

This application is made pursuant to section 81(2) of the Workers' Compensation Act 1988.

Signed: Neville W Hampton"

1. In an accompanying letter addressed to the Registrar, the appellant stated as follows:

"Mr Sutcliffe is employed at our Tamar Mill Longreach as a loader driver.

On the 17th April 1990 he submitted a claim for compensation alleging that at 1700 hours on that day he twisted his left ankle while 'stepping off loader onto ground and trod on stone ...'.

Mr Sutcliffe did not report that matter until 1820 hours of that day when it was observed by the Mill Foreman (Mr Craig Sheehan) that the left ankle was swollen and bruising was evident around the outside of the ankle, most noticeable beneath the ankle.

At the time of treatment Mr Sutcliffe did not exhibit undue difficulty in moving around on the injured leg, though it was observed by Mr Sheehan that Mr Sutcliffe did slightly favour the injured side.

We have received verbal advice from Mr Laurie McGhee, physiotherapist of Launceston (written advice has been requested) that seepage of blood into tissue so as to be evident after injury would not occur until at least 24 hours after the injury unless the injury was so severe as to not allow movement of any kind. Verbal advice from medical practitioners support this view.

A written report has been requested from the treating physician Dr M D Bruce and upon receipt of that report it is our intention to seek a written opinion from an orthopaedic specialist.

Copies of the relevant claim forms and doctors' certificates are enclosed.

We wish to dispute this claim on the grounds that the ankle injury did not arise out of and in the course of Mr Sutcliffe's employment as is required by section 25(1)(a) of the Act.

Would you please refer our application to the Commissioner for his initial determination as to whether or not section 81(1) should apply.

Please let us know if there is any further information we should provide.

Yours faithfully,

APPM Forest Products

Signed: N W Hampton

Safety Officer"

1. The effect of s81(1) of the Act is to require an employer who has received a claim for compensation to commence payments of compensation within five working days from the day on which the claim for compensation was received by him. Section 81(2) and (3) provide however that if a genuine dispute is found by the Commissioner to exist in respect of that claim, the Commissioner shall so determine and in that eventuality the provisions of s81(1) do not apply.

1. It was argued by counsel for the worker (the respondent to the present appeal) that APPM Forest Products' application to the Commissioner attempted to obtain from him, not only a declaration under s81(2), but also a determination upon the merits of the worker's claim, the suggestion being that para1 of the application dated 1 May 1990 was not simply an unnecessary elaboration of what was required under s81, but constituted a separate and distinct application pursuant to s42 of the Act.

1. In my opinion, this submission by counsel for the respondent must be rejected. It is quite clear from the course that proceedings took before the learned Commissioner, that he regarded the matter before him as being an application under s81 alone, notwithstanding that he purported to make a determination of the issue whether or not the worker had in fact suffered a compensable injury in the course of giving his decision.

1. The application came before the Commissioner on Tuesday 5 June 1990 in Launceston. In prefacing his decision the learned Commissioner said:

"Well ordinarily on a s81 application I simply hold there's a genuine dispute and suspend liability but it seems to me that I've gone as far in this case as anyone could go, I mean investigating the circumstances and there's no point in withholding a decision. I've heard from Mr Sheehan I've heard from Mr Sutcliffe I've got a medical report from Dr Bruce and I've got these advisory opinions from Mr Einoder and also the physiotherapist" (Mr McGee) "I'm going to hold that there isn't a genuine dispute having investigated the circumstances I'm not prepared to say that Mr Sutcliffe is not telling me the truth...".

1. The learned Commissioner went on then to review the evidence that had been placed before him and concluded as follows:

"But nevertheless I'm going to decline to hold there's a genuine dispute which means that in my view the company is liable for the injury in this case even though there's a pre–existing history of ankle injury which may have been even evident on the day he came on the shift. I'm still prepared to hold that exacerbated the condition in the way that he claims at 5 and then didn't think it worth reporting but then when it swelled he'd make a report at 6.20."

1. The learned Commissioner subsequently, and no doubt mindful of his obligations pursuant to s61(3) of the Act, delivered a statement in writing of his reasons for making the determination which he had on 5 June. Those written reasons do not differ materially from the oral reasons given by the learned Commissioner at the time of announcing his decision. In the written reasons, he clearly acknowledged that the matter came before him under s81 of the Act and after reviewing the evidence he concluded:

"The point in dispute was fully explored at the hearing before me. In my opinion it was quite proper for the employer to dispute the claim. However, having heard all the evidence available, in my opinion I should resolve the dispute in the claimant's favour. The section 81 application is dismissed. The employer is therefore liable to pay compensation."

1. There was nothing said at the hearing before the learned Commissioner on 5 June 1990 to indicate that either the employer or the employee elected for the merits of the claim to be determined by the Commissioner. Nor was anything said by either party to suggest that no further evidence would be forthcoming if a subsequent hearing on the merits were to take place.

1. In the circumstances, it is plain to me that the learned Commissioner was wrong in determining that there was no genuine dispute under the provisions of s81 and he was also wrong, and exceeded his jurisdiction, in purporting to resolve the genuine dispute which did exist upon its merits upon the basis of the material then before him. In these circumstances the learned Commissioner clearly erred in point of law and the appeal must be allowed. There is no need to consider the other submissions which were made as to the sufficiency of the evidence upon which the learned Commissioner based his findings of fact. The matter will be remitted to the learned Commissioner with a direction that in accordance with s81(3)(b) of the Act, he should determine that subs(1) does not apply.