Burgess v Precise Timbers Pty Ltd
[1990] TASSC 50
•19 September 1990
Serial No 47/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Burgess v Precise Timbers Pty Ltd [1990] TASSC 50; A47/1990
PARTIES: BURGESS
v
PRECISE TIMBERS PTY LTD
FAI GENERAL INSURANCE COMPANY LTD
FILE NO/S: LCA 8/1990
DELIVERED ON: 19 September 1990
JUDGMENT OF: Wright J
Judgment Number: A47/1990
Number of paragraphs: 32
Serial No 47/1990
List "A"
File No LCA 8/1990
BURGESS v PRECISE TIMBERS PTY LTD
& FAI GENERAL INSURANCE COMPANY LTD
REASONS FOR JUDGMENT WRIGHT J
19 September 1990
This is an appeal from a determination of the Workers' Compensation Commissioner made on 20 March 1990. The learned Commissioner had before him an application purporting to be made under s42 of the Workers' Compensation Act 1988 in the following terms:
"I, FAI Insurance for and on behalf of Precise Timbers of 125 Collins Street Hobart hereby apply to the Workers' Compensation Commissioner to hear and determine the following – due to the circumstances surrounding the claim we wish to dispute this claim for compensation."
The application was dated 2 November 1989. Particulars of the "circumstances" referred to and the "claim" in question, were not included in the application itself. It was plainly deficient in that it was devoid of any relevant detail as to the subject matter of the application. It was however accompanied by a letter addressed to the Workers' Compensation Commission in the following terms:
"re: Workers' Compensation Claim Precise Timbers and Darrel Ian Burgess
It appears that some circumstances surrounding the alleged accident are somewhat vague and therefore we have decided to dispute this claim. We briefly submit the following information which outlines the basis of our dispute:
(a)The worker stated on their (sic) claim form that the alleged injury occurred on 25589.
(b)The clients stated on their claim form that the worker had the alleged injury on 25589, started work for Precise Timbers on 24589 and that the worker didn't stop work until 4.30pm on 26589.
(c)It has been established since the completion of the claim forms that the worker actually started employment on 17589 and had the alleged accident on 18589.
(d)A witness' statement stated that the worker complained of a torn leg muscle which he said happened whilst working on the roof of Hamilton's Butcher Shop in Wynyard, earlier that week.
The claim was initially accepted because the employer's claim form was not forwarded to us within the five day limit. Also, as it did not seem a very serious injury, we assumed that it would be only a relatively small claim so we did not dispute it at the time.
After some time the initial injury progressed into a back problem.
We referred him to a specialist in Hobart but he did not attend the appointment so we served a notice on him advising that compensation would be terminated in accordance with section 85(6) of the Act.
A couple of days after the notice was served both letters that were sent to him returned to us in the mail marked 'Return to Sender'.
When he noticed he was not receiving compensation payments he contacted his employer as well as ourselves and I advised him of our actions and our intentions to dispute the claim. He said that he had left his previous address about four months before. We have arranged a further appointment with the specialist on 271189. He also advised that he has had an operation which was performed by Mr G Duffy but we have no records on our file that indicate this. We have requested a report from him.
As it can be seen by the above facts, some aspects of this claim need clarification and therefore we enclose an application for hearing along with copies of our file in order that the Commissioner can make a determination.
We hope this is of some assistance to you.
Yours faithfully,
N Padas
Claims Officer"
It will be readily appreciated that this letter, although providing details of some relevant aspects of the matter, is still less than adequate to inform anyone unfamiliar with the case what the dispute was all about, who the parties to the dispute were and what determination was sought from the Commissioner. At all events Mr Darrel Ian Burgess, a former employee of Precise Timbers Pty Ltd, was served with notice of the application and attended before the Commissioner who delivered a ruling in the following terms on Tuesday 21 November 1989 at Burnie.
"The employee is a labourer. He claims he pulled a right leg muscle at work on the 18 of May last. He was duly paid compensation. However recently compensation was terminated on the ground that the claimant did not keep an appointment with an orthopaedic surgeon.
At the hearing before me it appeared that the claimant was not properly served with notice to attend the appointment and that therefore payment could not be terminated under section 85(b)". [This is obviously a typographical error and the section referred to should have been s85(6)]. "However there are no medical certificates in accordance with the Act served upon the employer in relation to the alleged back injury which on the face of it has no connection with the leg injury alleged last May. Accordingly I expressed the opinion that it would seem that for some time past at least, the employer has had no obligation to make any payments under the Act. I requested an officer of the Department of Labour and Industry to make an investigation. The insurer has very properly arranged an appointment with a doctor in Hobart in order to ascertain whether the leg and back injury are in any way related. There is also a dispute as to whether the leg injury was in any case caused at work. The reference under section 42 by the insurer is adjourned sine die pending a report by the Department of Labour."
After receiving a report by a senior industrial officer employed by the Department of Employment, Industrial Relations and Training on 13 March 1990, FAI General Insurance Ltd rejected the view expressed therein that "the medical evidence supported the [employee's] claim" and requested "the dispute to go before the Workers' Compensation Commissioner".
A further hearing was arranged before the Commissioner on 20 March 1990 and was adjourned to 27 March 1990 to enable evidence to be taken on oath from a number of witnesses. At the hearing, the employee Mr Burgess, was represented by leave of the Commissioner by an apprentice at law and his former employer, Precise Timbers Pty Ltd and the employer's insurer, FAI General Insurance Ltd., were represented by Mr Christopher Webster of counsel. It was apparently understood by all concerned that the Commissioner proposed to embark upon a determination as to Mr Burgess' entitlement to receive workers' compensation from his former employer in accordance with the criteria prescribed in s25 of the Workers' Compensation Act 1988.
At the conclusion of the hearing on that date, the Commissioner gave brief oral reasons for his decision which concluded in the following terms:
"I am simply not satisfied on the balance of probabilities that the claim was made out and accordingly the claim is dismissed."
Written reasons expanding upon the oral reasons were subsequently delivered to the parties. Those reasons will be referred to in greater detail later in this judgment.
The employee Mr Burgess now appeals against the Commissioner's determination, alleging errors in law as follows:
"(a)Failing to find that the respondent (employer) having commenced to pay compensation and having instituted the application under section 42(1) of the Act had the onus of establishing a right to terminate payment of compensation to the applicant (employee).
(b)Failing to find that the respondent had the burden of proof on the balance of probabilities to show that the accident which caused the injury did not occur in the course of the applicant's employment with the respondent.
(c)Failing to refer the applicant's medical question to a medical board for assessment to enable him to obtain medical advice and/or medical opinion.
(d)Failing to consider whether the applicant's employment with the respondent contributed to a substantial degree to the injury suffered by the applicant.
[(e) and (f) were abandoned.]
(g)Failing to treat the matter as an application for review by the employer under section 88 of the Act.
(h)The Commissioner did not have jurisdiction to deal with the dispute under section 42 and did not have power to dismiss the claim there being no prescribed means of doing so."
After seeing the way in which this matter developed before the Commissioner, I was initially somewhat concerned as to the process whereby the worker was deprived of weekly compensation payments, liability for which had been clearly acknowledged by Precise Timbers Pty Ltd's insurer who had been content to pay him weekly compensation from 30 May 1989 to 13 October 1989. Having taken this course and having unequivocally accepted liability for payment of compensation in respect of the leg injury alleged to have been sustained whilst Mr Burgess was working for that company, the insurer sought at first to cease compensation payments under the provisions of s85(6) because of Mr Burgess' failure to attend a medical examination.
Under s85(6), the insurer has only a right to "suspend" payment "until the matter has been determined by the Commissioner". I doubt that this section was ever conceived as a vehicle whereby an employer, or insurer, perhaps years after the original injury by accident, may seek to call in question the event or occurrence which gave rise to the initial claim. Nonetheless, that is exactly what FAI sought to do on this occasion, even though the Commissioner found in his decision of 21 November 1989 that the insurer was not justified in suspending payment of compensation on the grounds that it alleged. As a result of the views expressed by the Commissioner in his decision of 21 November 1989, the insurer's original application seems to have been regarded as having become transformed into a direct challenge to Mr Burgess' entitlement to receive any payments at all on the basis that he could not bring himself within s25 of the Act. Perhaps it was the insurer's intention to mount a challenge of this kind at the outset, but as I have already commented, its application, even viewed in the light of the accompanying letter, did not make it plain that this is what was in mind.
However, my initial concerns have been substantially allayed because it appears from what I have been told from the bar table by counsel, that the worker was represented throughout the course of the proceedings and that his representative was aware of the issues involved and had the opportunity of dealing with them when the matter came before the Commissioner again on 27 March 1990.
As already mentioned, the case was originally referred to the Commissioner by the employer's insurer, principally because it was unclear to the insurer whether the spinal condition was the source of the original symptoms felt in the right leg, or whether the spinal condition was a separate and distinct injury from the leg disability. On the evidence, there was sound reason for concluding (as Mr G Duffy did) that the leg symptoms which Mr Burgess claimed to have experienced for the first time on 18 May 1989 were caused by an injury to a spinal disc. This inter–relationship between the spinal lesion and the leg symptoms appear to have become less important during the actual hearing before the Commissioner on 27 March 1990 because as that hearing developed there was concentration upon whether or not the leg symptoms had been experienced for the first time on 18 May or an earlier date when the employee was not employed by Precise Timbers Pty Ltd This became the dominant issue to which the evidence was directed, the assumption being no doubt, that if Mr Burgess had in fact sustained a leg injury whilst working at the butcher's shop, it could be inferred that this had been caused by a concurrent or nearly concurrent, spinal disc prolapse particularly if, contrary to his evidence, Mr Burgess had suffered no accident involving the leg whilst working for Precise Timbers Pty Ltd a few days later.
When delivering his determination, the Commissioner mentioned other alternatives which could have explained the back injury such as it having occurred either before or after Mr Burgess' involvement in either job but there was little if any evidence which would have supported such a conclusion. A fourth alternative mentioned by the Commissioner in his reasons – viz, that an occurrence on 18 May whilst working for Precise Timbers Pty Ltd may have aggravated an injury which had its genesis at the butcher's shop site, was another possibility which was discussed but does not appear to have been fully canvassed or explored in the evidence before the Commissioner.
The way in which different circumstances and combinations of events may have affected the plaintiff's claimed entitlement to compensation were obviously very important to the learned Commissioner. For this reason if the case came down to the failure of one party or the other to discharge an onus of proof, it was fundamentally important that the issues in respect of which proof was deficient should have been clearly identified and the obligation of one party or another to discharge the onus as to that issue should have been clearly discernible. I do not think that that task of analysis was undertaken by the Commissioner in the present case. I think he saw Mr Burgess in effect as having the role of a plaintiff in a civil action alleging an injury at work causing incapacity and the employer and insurer as being in the position of defendants who were denying both the injury at work and the incapacity as well. Had this been the case in reality there could be no complaint that the Commissioner saw Mr Burgess as carrying the burden of proof of both issues. However, the way in which the matter before the Commissioner appears to have undergone a metamorphosis between 2 November 1989 and 29 March 1990 without any clear indication of how the issues were to be defined or resolved and without any clear indication of whether the Commissioner was conducting an inquisitorial or adversarial exercise, persuades me that in the circumstances he fell into error.
The Commissioner's function is (inter alia) to determine all claims for compensation and all other matters as are referred to him under the Act (s20). The procedure he is to follow is dealt with in s49. He is not bound by rules of evidence and he is not governed by rules of court. He is obliged to conduct proceedings with as little formality and technicality and with as much expedition as the requirements of the Act "and a proper consideration of the matters to be resolved permit". This is a fairly typical example of modern legislation which tends to embrace the criteria of speed and economy without full regard to the more fundamental requirements of natural justice and procedural fairness. Technicality and formality are virtually discarded as unimportant in the quest for a speedy resolution. Unfortunately, a speedy resolution is not necessarily a just one. Workers' compensation claims often involve large amounts of money and complex issues of fact and law. Section 57 provides that the Commissioner is to resolve matters involved in a proceeding before him "on such evidence as is placed before him after all parties have been given a reasonable opportunity to be heard". This section and the other sections previously referred to do not give the Commissioner carte blanche to dispense with procedural fairness in proceedings before him although he is given fairly awesome powers by the Act. Section 62 provides that his order is final and binding and under s47(1) and (2), he has a discretion to decline to allow a party to be represented before him if he chooses. The extensive powers of the Commissioner are typified by the provisions of s62(4) which are as follows:
"Subject to section 63 no order or proceeding of the Commissioner with respect to an order –
(a) is vitiated by reason of any informality or want of form; or
(b) is liable to be challenged, appealed against, reviewed, quashed, or called into question by any court."
Section 63 gives a limited right of appeal to an aggrieved party. The appeal is only "in point of law" to this Court. The largely unfettered powers of the Commissioner, coupled with his capacity to embark upon a determination of valuable rights in the absence of formal pleadings, and untrammelled by rules of evidence or procedure, are clearly designed to produce a speedy resolution of a dispute, but if that resolution is at the expense of the basic rights of either party, it may well be said that it comes at too high a price.
According to Mr Burgess his injury arose in the following circumstances. On about 14 May 1989, he assisted Mr Walker, a friend of his, to lift some sheets of roofing iron on to the roof of the Hamilton Butchery where Mr Walker a builder, was undertaking some repairs or renovations. Mr Burgess also assisted Mr Walker by holding the roofing iron in place whilst it was nailed down. He was not paid for this work except perhaps for a little "beer money" and the entire operation only took a few hours. According to Mr Burgess he felt "a bit stiff" after doing this day's work because he was unused to physical exercise at the time, but he sustained no injury. Mr Walker, in evidence before the Commissioner, confirmed that Mr Burgess complained to him of feeling stiff but nothing more.
On 17 May 1989, Mr Burgess secured employment with Precise Timbers Pty Ltd The stiffness in the right calf muscle which had been present since working on the roof of the butcher's shop had disappeared by lunch time on that day. On the second day, 18 May 1989, he was doing pick and shovel work digging a trench and in the afternoon he was cleaning up around the mill. At about 4pm he picked up a piece of timber and as he did so, his right foot slipped. He felt a tearing sensation in his right leg which extended up into the middle of his back. He continued working until knock off time at 4.30pm. He also worked the following day from 8am until 4.30pm although he had some pain behind his right knee extending up the thigh into his buttock on that occasion. He though at first it was only a leg strain. The pain however persisted on Saturday 20 and Sunday 21 May when he first sought medical assistance from Dr K McArthur. Following this he was treated with physiotherapy but without success.
In August 1989, he was referred to Mr Graeme Duffy an eminent neurosurgeon (now deceased), who diagnosed a prolapsed inter–vertebral lumbar disc. On 23 August 1989, Mr Duffy performed an L5S1 discectomy. In a report dated 9 November 1989 addressed to FAI General Insurance Company Ltd., Mr Duffy said:
"I am dependent upon the history that Mr Burgess gives me but on the history that he did give I would attribute his prolapsed inter–vertebral disc to an injury at work".
In a further report dated 19 February 1990 (about three weeks prior to his death) Mr Duffy said:
"It is my opinion that the symptoms of leg pain that Mr Burgess suffered were attributable to a prolapsed inter–vertebral disc in his lumbar spine and that the prolapse was attributable to a fall at work on 18 May 1989."
These reports were before the Commissioner.
If the factual history stated above had remained uncontested, it would seem clear that Mr Duffy's opinion was amply justified and that Mr Burgess' claim for compensation for the disc injury was fully made out. Unfortunately for him however, evidence was called before the Commissioner by the insurer from three witnesses who gave evidence to the effect that whilst working at Precise Timbers Pty Ltd's mill, Mr Burgess had stated that he believed he had "torn the muscles in my leg when I was working at Hamilton's Butcher shop" (see the evidence of Mr H Heine), "I've got a crook leg, I hurt it a couple of days ago up on Hamilton's roof" (see the evidence of Mr H French) and "I had trouble getting my socks on this morning I was doing some work over at a butcher's shop and I must have pulled a muscle" (see evidence of Mr D V Jacklin). The same three witnesses also said that Mr Burgess did not complain to them that he had hurt his leg whilst working for Precise Timbers Pty Ltd and that none of them had seen him sustain such an injury.
If the evidence of these three witnesses was accepted (as it apparently was) by the Commissioner, he would have been fully justified in suspecting, if not concluding, that Mr Burgess' injury had occurred not whilst he was working for Precise Timbers Pty Ltd at all, but whilst he was rendering unpaid assistance to Mr Walker at Hamilton's Butcher shop – a conclusion which may well have been fortified by the fact that it emerged in evidence that Mr Walker carried no workers' compensation insurance at the relevant time. However the Commissioner expressly declined to find that Mr Burgess had told deliberate untruths about his ailment and the way in which it originated. In his written reasons he said:
"In the claimant's favour" [he plainly regarded Mr Burgess as the claimant] "I believe I can infer that a disc protrusion does not necessarily result in immediate prostration and incapacity. That is I think implicit in the surgeon's reports upon which the claimant principally relies for support. However that does make it all the more difficult for me to determine when the disc protrusion occurred. Did it occur at the butcher's shop when the claimant himself admits he suffered some degree of strain? Did it occur when the claimant was working for three days for the employer in this case? Or did it occur at some time subsequently after he left his employment? Counsel for the employer attacked the credit of the claimant and submitted that I should accept the evidence of the three witnesses called for the employer. As I stated at the hearing I am not prepared to find that the claimant was deliberately not telling me the truth. However the weight of evidence is certainly in favour of the employer. I think the claimant did complain of some injury suffered at the butcher's shop to his employer and the other two witnesses. During the three days he was employed I find he made no complaint of injury to his employer. I think he has innocently reconstructed a complaint of injury of work out of the incident when he bent down to pick up a piece of timber and felt pain in leg. The claimant was noticeably vague as to events and dates. This incident could have been merely a reminder to him of the muscular strain injury which he admits he suffered at the butcher's shop a short time previously. Alternatively the pain could have been a mere symptom of a disc protrusion which the claimant had already suffered at some indeterminate time in the past. In brief there are so many possibilities open that in my view it cannot be reasonably said that the claimant has affirmatively established that the disc protrusion injury happened during the three days he was working for the employer in this case. The question at issue in this case is a question of fact and I am unable to resolve it in favour of the claimant. I confirm my order made on 27 March that the claim for compensation be dismissed."
Under s63 of the Workers' Compensation Act 1988, as I have already mentioned, any aggrieved party may appeal to this Court against "a determination, order, ruling or direction of the Commission in point of law". There was some debate as to whether an appeal to this Court is an appeal "stricto sensu" or by way or rehearing but it is unnecessary to resolve this question at the present time as the distinction is unimportant for current purposes.
In support of ground (a) of the appeal, it was submitted that the procedural changes effected to the workers' compensation law in this State by the repeal of the 1927 Act and the enactment of the 1988 Act, were such as to cast the onus of proof upon the employer in proceedings of the kind which were in fact taken before the Commissioner. There was some initial debate as to whether the Commissioner could entertain the employer's application at all. This debate was formalized by the addition of ground (h) to the Notice of Appeal. It was pointed out that an employer seeking to terminate or reduce weekly payments may only do so under the circumstances provided for in s86 of the 1988 Act. It was also pointed out that the 1988 Act no longer permits the employer to take the course of cutting off weekly payments "where the worker ceases to be entitled to such payment under the provisions of this Act", as was provided by s21(1)(e) of the 1927 Act. Significance was also attached to the fact that unlike the 1927 legislation which provided no sanction for a breach of s21, s86(5) of the 1988 Act now provides that an employer attracts penal consequences if he terminates a worker's weekly payments when not entitled to do so. It was submitted that in such circumstances where a worker has been receiving payments from his employer who discontinues payments unilaterally, it can no longer be said that the matter in dispute is "a claim for compensation" which may be dealt with by an application under s42. It was argued that such a dispute is justiciable if at all, under s86(4) but as there are no procedures prescribed either by the Act itself or Regulations as envisaged by subs.(4), the Commissioner could not validly entertain any such application until such procedures were provided for.
I think that the first of these submissions may have substance but the second does not. Mr Burgess had already made his claim for compensation and it had been accepted by his employer before that company sought to agitate the issue of its liability before the Commissioner. It may therefore be said that the claim had served its purpose and the employer had accepted the injury as caused by and arising out of the claimant's employment and that accordingly the claim was no longer capable of dispute under s42. The dichotomy between a worker who "claims compensation" and one who "is receiving a weekly payment" is clearly recognized in s85(1) of the Act. However I do not think that the absence of a prescribed procedure under s86 can preclude the Commissioner from adjudicating upon an issue which he is entitled to entertain under the substantive provisions of s86. A remedy cannot be refused because the procedural mechanism has not been provided.
It was argued by the respondent that a mere payment of compensation does not amount to an agreement to make future payments and does not operate as a form of estoppel against an employer. (See per Cosgrove J in Holmyard v The Marine Board of Hobart, No 10/1987 at p4 and per Cox J in Carr v Glenorchy Municipality, No 54/1988 at p7). These decisions however were under s21 of the 1927 legislation and I think that the differences between that section and the present s86 are significant for the reasons advanced by counsel for the appellant to which I have already referred. It is noteworthy that the only party who may legitimately apply to the Commissioner under s86 is the worker himself. This could lead to the conclusion that the respondents had no right to apply to the Commissioner pursuant to either s42 or s86. If this view is correct it would follow that the whole procedure before the Commissioner was fundamentally flawed from the outset and he should not have entertained an application by the employer or its insurer and he should not have embarked upon a hearing to determine whether Mr Burgess had an entitlement to compensation at all. His only role was to determine whether the employer was entitled to reduce or terminate weekly payments for one of the reason adumbrated in s86(1). Even if it was competent for the Commissioner to entertain an application under s42, it cannot be overlooked that in this case it was the employer who made the application to him. (It is worth noting that under the 1927 legislation, an employer had no right to institute proceedings such as these). Having assumed the role of applicant it seems to me that the employer also assumed the onus of proving to the Commissioner such facts as would entitle it to cease making weekly payments. This question was scarcely adverted to by the Commissioner during the hearing. He suggested at the outset that the onus of proof lay on the employee but did not invite debate upon that proposition. He also said:
"I don't think it really matters who goes first and who goes second. The result is going to be the same."
As subsequent events disclosed however, the onus of proof assumed critical proportions in the Commissioner's determination. He could have disbelieved Mr Burgess as I have already commented, and he could have found that Mr Burgess was telling deliberate lies, but he declined to do so. His decision is based squarely upon the onus of proof and his conclusion that Mr Burgess failed to discharge it. In this I think he was wrong.
In Carr v The Glenorchy Municipality, No 54/1988, Cox J, after tracing the legislative history of s21 of the 1927 Act and the Tasmanian decisions relating thereto, said this at p5:
"In these circumstances it seems to me that Parliament was intending to give to the worker already in receipt of compensation payments properly commenced and paid under the Act the protection of having the onus of justifying any termination of or diminution in these payments placed on the employer who asserted that he should no longer receive them. In the event that the employer made application to a judge for review the onus of proof would clearly lie upon him (Baker v Jewell [1910] 2 KB 673; Vacuum Oil Company v Pyke, Crisp J 381960; North West Construction v Johnston [1962] Tas SR (NC) 372, Burbury CJ 10662; The Commonwealth v Muratore (1978) 141 CLR 296 at p302). However, in the event of unilateral termination by the employer thereby forcing the worker to take proceedings to enforce his right to compensation, although the onus would remain on him to establish his basic entitlement to compensation under the Act by demonstrating that injury through accident in accordance with s5 had resulted in incapacity productive of economic loss, once he had done this by admission or evidence it would be for the employer to prove as justification for termination which of the circumstances set out in s21(1) is relied upon." [My emphasis.]
It is no answer to the proposition that an employer who commences proceedings to justify a termination or diminution of compensation has the onus of proof, to say that he may have the burden of proving facts and circumstances which are peculiarly within the knowledge of the employee. Such difficulties are commonplace in civil litigation between opposing parties and whilst it is relevant to consider the existence of serious or indeed insuperable problems which may attend the casting of the onus of proof upon one party or the other in determining where that onus lies, it is not a consideration which is usually determinative of that question. No doubt it would have been possible for Parliament in enacting the 1988 Act to deal with this problem in relation to ss86 and 88 and, having regard to the considerable debate that has attended this question in previous cases, it is plainly desirable that it should have done so. However Parliament's failure to deal directly with a difficult problem cannot be taken as a positive indication that earlier decisions upon an old statute which has been substantially modified in modern legislation, are to continue to bind courts involved in future litigation if such courts can discern valid reasons for changing direction based upon normal canons of statutory construction.
Whilst I do not go so far as to endorse the argument that an employer or his insurance company is precluded from disputing a worker's basic entitlement to compensation once he has started to make weekly payments, I am quite satisfied that if the employer or the insurer seeks to litigate that matter once the payments have commenced and have then stopped, the onus of justifying that course of action lies upon the employer or the insurer if either of them initiate proceedings before the Commissioner.
As ground (g) of the appeal suggests, it may have been possible for the Commissioner to regard the application by the employer as an application for review under s88 of the 1988 Act. Under this section (as distinct from s86) the employer and the licensed insurer of the employer both have locus standi to make application to the Commissioner. Equally clearly however, if the application should have been seen as an application under s88, the applicant employer and insurer would have carried the onus of proof. As with s86, s88 envisages that procedures will be prescribed enabling a worker, an employer of a worker or the licensed insurer of the employer, to refer to the Commissioner for review of weekly payments being made to the worker. Ignoring for the moment the fact that no procedures have been prescribed under this section, it seems to me perfectly clear that s88 was never intended and in its terms does not, permit an employer or insurer to question the foundational facts upon which payments of weekly compensation have proceeded up until the date of review. But again irrespective of this, it seems to me that if an employer or its insurer should make an application under s88, it would assume the onus of proving any fact necessary to enable such a review to take place. To sum up. If the Commissioner was entitled to proceed under s42, as the application was made by the insurer on behalf of the employer, those parties bore the onus of proof of all issues raised by that application. They had no right to apply under s86 and, insofar as they applied under s88, again, as applicants, they bore the onus of proof.
For these reasons it seems to me that the Commissioner's approach in determining that Mr Burgess was not entitled to workers' compensation payments was erroneous. This being so, there is no need to deal exhaustively with grounds (c) and (d) because what I have already said demonstrates that the appeal must succeed. However, I think it is appropriate to observe that although s49(3) is permissive in form in that it says that the Commissioner "may" appoint a Medical Board or a medical practitioner to consider a medical question, whether he should do so or not is a discretionary course which, in appropriate circumstances, he may have to consider. Certainly he will be regarded as having a very broad discretion indeed in deciding whether or not he should take either of these steps and, if in fact he exercises his discretion against doing so, his decision in that regard would normally not be reviewable. For my part I would consider that the difficulty which the Commissioner apparently encountered in making a decision in this case, may well have been overcome by a Board or a sole practitioner advising him upon the issues involved. The Commissioner debated, but failed to resolve, these issues for himself in his reasons. For example, a Board or a medical practitioner may have given a useful opinion upon the possibility of a man with a prolapsed disc working for three days without obvious and severe symptoms. They may also have provided a useful view upon the likelihood of the activities described by Mr Burgess, particularly those on 18 May 1989, producing an injury of the kind discovered by Mr Duffy upon undertaking surgery upon his spine. It is understandable that the Commissioner would not necessarily regard Mr Duffy's written opinions as to the cause of this injury as being conclusive because obviously Mr Duffy did not necessarily view the historical facts in the same way as the Commissioner did and regrettably he could not be consulted again for clarification because of his sudden and untimely death, but it seems to me that the Commissioner may well have derived substantial assistance from a medical review of the matters in issue along the lines which I have suggested above. However it is unnecessary for me to express a concluded view upon this ground of appeal.
The question remains as to how this appeal should be disposed of. In a very useful decision dealing with the powers of this Court upon an appeal from the Workers' Compensation Commissioner (see The Electrolytic Zinc Co of Australasia Ltd v Arthur Fisher, No 31/1989) Underwood J referred to s197(3) of the Supreme Court Civil Procedure Act and the provisions contained in O76, rr54 and 55 of the Rules of Court. I have held that the Commissioner misconceived the onus of proof and in consequence dismissed the workers' claim for compensation. Under the 1988 Act the "claim for compensation" is both the initiating claim by the worker upon his employer after notice of the injury has been given (see s32) and part of the originating process by which the matter comes before the Commissioner for determination if not settled inter partes or by conciliation (s42). Under the current legislation one does not institute an action for recovery of compensation, one refers one's claim to the Commissioner by means of an application. I have held that whilst it was competent for the Commissioner to consider the issues raised by the application by FAI, he should have recognized that the applicants carried the onus of proof. This being so I do not see how I can determine the matter for myself. The evidence was insufficient to enable the Commissioner to come to an affirmative conclusion and it is equally insufficient for me to do so. The Commissioner did not resolve the cause of Mr Burgess' injury and he stopped short of rejecting him as a credible witness, although he cast some doubt upon his accuracy and reliability.
In these circumstances I think the only feasible course is for me to refer the application back to a part–time Commissioner appointed under s19 for rehearing in accordance with the views which I have expressed in these reasons.
ADDENDUM 1
It seems to me that under the scheme of the Act as it currently stands, it is singularly inappropriate for a commissioner seized of a matter upon the application either of a worker, an employer or an insurer, to dismiss a claim on the basis of failure to discharge an onus of proof. The proceedings before a commissioner are properly to be regarded as proceedings in a court (see decision of Underwood J in Fisher). But the proceedings before him are not simply adversarial, they are largely inquisitorial. He is not bound by the rules of evidence and he has power to refer matters to Medical Boards and to call for reports and so on from the Department of Labour and Industry.
Bearing these factors in mind, it seems to me singularly inappropriate that any matter should be dismissed so long as avenues of enquiry still remain open to the Commissioner which he has not pursued.
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