Convy v Baur No. Scgrg-97-1251 Judgment No. S6530

[1998] SASC 6530

CONVY v BAUR

Magistrates Appeal

Debelle J

This is an appeal from the Magistrates Court at Port Adelaide. The magistrate found the appellant guilty of two offences against s120 of the Workers Rehabilitation and Compensation Act, 1986 (“the Act”). The first offence was dishonestly claiming to be entitled to a payment or other benefit under the Act contrary to s120(1)(b). The second was that he dishonestly made a statement about a claim for compensation under the Act knowing the statement to be false or misleading, contrary to s120(1)(c) of the Act. Because he believed that a conviction for the offences would result in a penalty disproportionate to the nature and seriousness of the offending, the magistrate decided not to record a conviction. However, he fined the appellant $1,000 and ordered him to pay court fees and levies. The appellant appeals against both findings of guilt.

At the hearing the complainant did not tender evidence on the second count.  In his reasons, the magistrate said “that the prosecution has proved its case beyond reasonable doubt on both counts”.  However, the summons bears an indorsement stating that count two had been dismissed, and that the hearing was proceeding only on count one.  That indorsement was made in the course of the prosecution case. It would seem, therefore, that, when preparing his reasons, the magistrate had overlooked the fact that count two had already been dismissed.  He has, therefore, erred in finding that the appellant had been guilty of the offence charged in the second count.  The appellant must, therefore, succeed to the extent that he is not guilty of the second count. 

At the hearing of the complaint, the complainant amended the particulars of the first count.  It is convenient to set out the first count and the amended particulars.  The first count alleged that the appellant

“by Notice of Disability and Compensation Claim Form dated the 14th day of November 1995, dishonestly claims (sic) to be entitled to a payment or other benefit under the Workers Rehabilitation & Compensation Act, 1986 as amended (“the Act”) contrary to s120(1)(b) of the Act.

Particulars

He claimed that because of a back injury allegedly sustained on the 6th day of November 1995, he was unable to perform the duties provided for him by his employer whereas he well knew that the effects of such injury, if any, did not incapacitate him for the said duties.”

The magistrate found that the appellant was guilty of that count.

On behalf of the appellant, Mrs Shaw QC submitted that the finding of guilt on the second count demonstrated that the magistrate had “totally misconceived” his task and that the appellant had been deprived of a fair trial in respect of the offence alleged in the first count.  I do not agree.  Although the magistrate erred in making a finding of guilt on the second count, his error has not caused him to misconceive his task. An examination of his reasons for judgment shows that, despite his error, he has correctly approached his task.  One error made in the course of reasons for judgment is not necessarily a ground for setting aside the whole of the reasoning.  Each count must, of course, be considered separately, but there is nothing in the reasons of the magistrate to show that he has not done so or that he has used the evidence on one count as a make weight for an absence of evidence to prove another count.

At the relevant time the appellant was employed by BHP as a bricklayer.  During the week commencing 6 November 1995 he was working night shift.  The hours were 7.30pm until 7.30am.  On 6 November 1995 he told Higgins, a fellow employee, that he had injured his back while working.  He did not, however, report the injury to his supervisor or to any other person at BHP.  He completed his shift.  He did not seek light duties at that time.

On 8 November 1995 some employees at BHP, including the appellant, played a prank upon one of the supervisors.  In respect of that incident, the appellant was singled out for reprimand and was given a first and final warning.  He considered that to be an unduly harsh response to the prank.  The appellant had still not reported his back condition to BHP.  Later, in the course of the shift at a little after midnight, the appellant reported his back injury to a supervisor.  He was directed to attend the medical centre to report his injury.  He did so and was treated and given light duties.  The appellant returned to work.  Later in the shift he was told he did not have to work the next shift on the following night if he did not wish to do so.  The appellant refused the offer.  He worked on light duties the next day which was 7.30pm on 9 December until 7.30am on 10 December 1995.  He made no further complaint about his back.

Later on the morning of 10 November, after completing his shift, the appellant was seen by an inquiry agent assisting others to lift furniture from a house on to a truck.  The appellant had earlier agreed to assist his father-in-law move the furniture.  In his evidence, he said that he did not experience any difficulty as he did not lift any heavy furniture by himself.

The appellant was not required to work and did not work on the night shift on the evening of Friday 10, Saturday 11 or Sunday 12 November.  They were rostered days off. The appellant’s evidence was that he spent most of the Saturday and Sunday in bed suffering from some back pain and splitting headaches. The appellant was due to recommence work on day shift at 7.30am on Monday 13 November.  At about 6.30am Higgins rang the appellant about transport to work.  The appellant told him that he was not going to work as he was feeling sick.  The appellant did not attend work.  Later that morning, Higgins telephoned him and informed him that he was required to attend work to fill out an incident report. 

During the afternoon of 13 November the appellant consulted Dr Connolly.  He told him that he had been reprimanded in relation to the prank as a result of which he felt extremely stressed and anxious.  The magistrate found that the appellant mentioned the injury to his back but stated that it had improved.  The magistrate also found that the appellant told Dr Connolly  that his primary reason for seeing him was because of the stress he was experiencing in consequence of the reprimand.  The appellant asked Dr Connolly for a certificate for time off because of his anxiety state.  Dr Connolly informed him that WorkCover did not recognise stress related claims based on a reprimand if the reprimand was appropriate.  Dr Connolly said that he would mention the back injury and the stress on the medical certificate he issued.  The appellant told Dr Connolly that he did not want him to mention the back injury.  Dr Connolly wrote it on the medical certificate for the sake of completeness.  On 14 November the appellant completed and lodged the claim forms the subject of the prosecution.

Dr Connolly gave evidence about the consultation and it was an important part of the prosecution case. The magistrate accepted Dr Connolly’s evidence, preferring it to that of the appellant.  It is appropriate to note it in some detail.  Dr  Connolly said that the appellant told him that he had a headache and was feeling stressed at work because of the warning he had received after the prank.  Dr Connolly said that the appellant also mentioned that his back had been sore the week before but that his main concern was his anxiety state. He said that he was tearful and upset during the consultation. Dr Connolly’s recollection was that the appellant did not make much of the back pain. The consultation lasted about twenty minutes.  Dr Connolly provided the appellant with a certificate.  It stated that the appellant was suffering from “low back pain aggravated whilst working and attending medical centre and anxiety state related to work reprimand”.  Dr Connolly said that the appellant did not want him to record on the certificate anything concerning his back because he felt his condition was related to the stress at work.  However, Dr Connolly noted both disabilities.  Although the examination suggested that the appellant’s back was not causing him much trouble, Dr Connolly believed that it would be a compensation matter, and that it was desirable to get an X-Ray of an alleged injury.  He said that he believed that the appellant had two conditions related to his work and that all work related issues should be noted on the certificate.  In cross-examination he said that he thought the lower back pain should be investigated.  Dr Connolly suggested to the appellant that he take a couple of days off work to recover from his anxiety state and, in the meantime, have an X-Ray the next day and attend a physiotherapist if he was still experiencing problems with his back.  He did not know that the appellant was on light duties.  He presumed he was performing his normal duties.

Dr Connolly also said in his evidence that, if he had not observed the appellant’s anxiety state, he would not have certified him unfit for work because of his back.

In the course of the examination, Dr Connolly told the appellant that changes to the workers’ compensation legislation meant that he might not recover compensation if the reprimand was appropriate.  His evidence was:

“I mentioned the WorkCover legislation to Mr Convy saying that the WorkCover legislation has changed and depending on whether a reprimand was appropriate then it would have to be dealt with in the changes within the WorkCover legislation, so I said “You have got two issues here and it’s up to yourself and the BHP to sort of find out about these issues but I am putting both issues down on a WorkCover certificate...

I told Mr Convy that the WorkCover legislation related to stress and reprimands at work had altered legislation previous to this incident and I wasn’t aware what is acceptable and not acceptable, it would have to be decided whether a claim for his stress related anxiety state is justified under the WorkCover legislation or not, however I would say that Mr Convy struck me, as I said 20 minutes, not normally to be a man who would burst into tears in front of somebody else as he did on that occasion and I felt that it was inappropriate to subject somebody in that situation to further mental anguish which he obviously was describing to me being related to the work which he was undertaking for BHP.”

Dr Connolly said that the appellant did not ask for time off in relation to his back.  In cross-examination he said that the appellant was making light of any pain in his back.  He said that the appellant asked him not to write it down on his certificate.

The form completed by the appellant is a prescribed claim form.  It is issued by WorkCover Corporation.  It is in triplicate.  The top page is green, the second is pink and the third is blue.  The top form bears the heading “Notice of Disability”.  There is a large section on the righthand side of the top form which reads:

“BEFORE FILLING IN THIS FORM PLEASE NOTE

If you do not wish to claim for any expenses or time lost but wish to give notice of an injury, complete the green page and give it to your employer as soon as possible.
Keep the pink and blue copies in case you wish to make a claim later.

If you do wish to claim for any expenses or time lost, you must complete the pink page and give it to your employer as soon as possible with a WorkCover medical certificate supporting your claim.  Keep the blue copy for your own record.

Please read details of your rights and responsibilities on the back of the blue form.”  (The emphasis follows that in the form).

The form first requires the worker to give details of his name and address and the name and address of the employer.  It then asks a series of questions about the injury.  The answers were completed by the appellant.  For present purposes, the relevant questions and the answers made by the appellant were:

Question  Answer
Was time lost from work due to injury?  Yes/No          Yes
Date of injury  6/11
Time of injury  3am
If you stopped work due to injury
    - date stopped work   13/11
Time   7.30am
Place where injury occurred  Bos Ladle
What injury(ies) did you suffer?  Lower back
Name of certifying Doctor (if applicable)  Connolly
What parts of the body were affected?  Lower back
What happened?  Working on Ladle No.5
  (6.11) back pain but
  continued work for
  2 days before pain got
  too great, reported to
  medical 12.20am (9.11).

The appellant then signed a declaration at the foot of the form that the details specified had been specified to the best of his knowledge, information and belief.

The appellant also completed the pink form which is headed “Compensation Claim”.  That form contains the same questions as the first green form and the answers given on the green form are reproduced by carbon copy on the pink form, that is to say, the answers on the pink form are the same as on the green form.  In addition, there are some sections to be completed on the pink form.  The appellant completed the other parts of the pink form and lodged it.  Thus, the appellant not only lodged a form giving notice of disability, but also lodged a separate form claiming compensation. 

The medical certificate completed by Dr Connolly was attached to the claim form.  The medical certificate is a pro forma document.  It has a series of printed statements requiring answers.  I quote the relevant parts of the completed form.  The first column below reproduces the printed part of the form. The second column contains the answers or statements made by Dr Connolly.

“6  In my opinion the worker was/is            Low back pain aggravated whilst
suffering from   working and attending medical
which the worker claims  centre and anxiety state related to
(and appears to be consistent)  work reprimand.”

Dr Connolly certified that the appellant was fit for what the medical certificate calls “alternative/modified duties” from 17 November 1995 and certified that the appellant was unfit for any duties from 13 to 16 November 1995.  In Section 10 of the certificate the medical practitioner is required to state the worker’s capacity.  Dr. Connolly answered that in these terms:

“To go for X-Ray Tuesday.
 To go to see physio Wednesday.”

The prosecution case was that the appellant was not suffering from a back injury to such a degree that he could not perform the light duties to which he had been assigned.  It contended that the appellant wanted time off from work which would be compensated;  that the appellant knew that he would not be compensated for his anxiety state;  and that in order to obtain compensation he had, therefore, deliberately and dishonestly represented that he had a back injury.

The issue which the magistrate had to determine was whether the appellant had made a dishonest claim for compensation.  Thus, the prosecution had to prove that the appellant had lodged a claim for compensation and that the claim was dishonestly made in that the appellant knew that his back injury did not incapacitate him from performing light duties.

The evidence shows that the appellant knew that he was making a claim for compensation and not merely reporting a disability.  That is the effect of the appellant’s evidence and of the evidence of Ms Butler, a claims management officer employed by BHP. In the course of her submissions, Mrs Shaw QC acknowledged that he had made a claim. In addition, the appellant had completed two forms, namely, the Notice of Disability and the Compensation Claim. The evidence also shows that Dr Connolly had told the appellant that it was unlikely that the appellant would receive compensation for his anxiety state.  The evidence also shows that the appellant knew that, if he could not get time off on compensation, he was entitled to sick leave.  The appellant admitted both facts in cross-examination.  The appellant could have given notice of his two disabilities and not claimed compensation.  Or he could have taken sick leave which was supported by Dr Connolly’s certificate.   Instead, he chose to lodge the compensation claim.  Furthermore, the Notice of Disability expressly explained, in the note to be read before completing the form, the difference between giving notice of a disability and making a claim for compensation.

I turn to the question whether the claim was dishonestly made.  At the hearing before the magistrate the appellant’s case was in part founded on the submission that the appellant was in fact disabled by his back injury from working on 13 November.  The appellant gave evidence to that effect.  His evidence was that his back was sore, that he was experiencing blinding headaches which he had never experienced before, and that he was getting shooting pains up the left-hand side of his back.  He said that, when he saw Dr Connolly, he told him of those symptoms.  None of these matters had been put to Dr Connolly in cross-examination.  The appellant also said that he told Dr Connolly about the first and final warning he had received.  In cross-examination he conceded that he might have told Dr Connolly that he associated his headaches with his anxiety state, but he was not sure about that.  He denied that he did not want the back condition mentioned on the medical certificate.  He said that he had seen Dr Connolly for both his back injury and anxiety state.  His wife gave evidence which in a general way supported the evidence of the appellant.

The magistrate did not accept the appellant’s evidence.  He described the appellant as being “very vague, evasive and unconvincing when responding to questions about down-playing his back condition”.  Further, he did not accept the appellant’s evidence that he had experienced the shooting pains.  He held that the appellant was mainly preoccupied with his anxiety state and that that was the reason why the appellant wanted time off from work.  He further held that, but for the appellant’s anxiety state, Dr Connolly would not have given him time off from work.  That latter finding was based on the uncontroverted evidence of Dr Connolly to that effect which has been mentioned above. The magistrate expressed his reasons in these terms:

“The doctor went on to say that the defendant did not consider his back condition of major importance.  He complained largely about being very upset.  The defendant said that he did not feel that he could attend work in his present mental condition.  Dr Connolly said that upon examination he did not believe that the defendant’s back was causing him much trouble.  The defendant also told the doctor whilst he was writing out the certificate that he did not want him to write down anything about his back because his concerns really related to stress at work.  Dr Connolly told the defendant that the Workcover legislation in relation to stress claims had changed and that a claim based on stress would not be accepted as justified even in response to an unjustified reprimand.

It is clear from the doctor’s evidence that the defendant was mainly preoccupied with his anxiety state and that is why he wanted time off work.  The defendant did not ask for time off in relation to his back and in fact he was adamant that he did not want it written on his medical certificate.  The doctor said that had it not been for the defendant’s anxiety problem he would not have given the defendant time off.  He would not have certified the defendant unfit for work in relation to his back.  Dr Connolly did not know that the defendant had been placed on light duties because the defendant had not told him.”

He later found that the appellant completed his claim form knowing that his back condition would not prevent him from working.  He expressed his reasons in these terms:

“I believe that when the defendant filled in his claim form he knew full well that his back condition would not prevent him from attending work and performing, at the very least, light duties.  I have no doubt on the evidence that the defendant upon finding out he could not claim for an anxiety condition dishonestly used a back condition as a basis for his claim.”

The magistrate then held that the appellant had acted dishonestly when completing the claim form.

I have read and re-read the transcript.  There is ample evidence on which the magistrate could have been satisfied beyond reasonable doubt that he should make his findings.  Further, the magistrate had the advantage of seeing all of the witnesses give their evidence and there is nothing which suggests he has misused that advantage.  He has preferred the evidence of Dr Connolly, whom he described as a “totally credible and reliable witness”.  On material facts the evidence of Dr Connolly is significantly different from the evidence of the appellant.  It is the evidence of Dr Connolly which belies the claim that the appellant was disabled by his back and could not work on 13 November.  There is no warrant for interfering with the magistrate’s findings. 

In the course of his reasons, the magistrate described the appellant’s evidence that he suffered shooting pains from his back up to his head as “recent invention”.  The magistrate’s use of the expression “recent invention” might not have been entirely accurate.  It is, however, apparent from his reasons that the magistrate’s purpose was to indicate that he believes that the appellant fabricated that evidence and he expressly states that conclusion nine lines later.  This inaccurate use of the expression “recent invention” did not justify Mrs Shaw’s attack on the reasoning of the magistrate, nor is it a reason to interfere with the finding of guilt.  Mrs Shaw also criticised the reasoning in that the magistrate did not expressly reject the evidence of the appellant’s wife.  However, it is clearly implicit in his reasoning that he has done so because it is inconsistent with the evidence of Dr Connolly, a conclusion wholly justified by the evidence of Dr Connolly.

The substantial case which was presented on the appeal was that the magistrate had misunderstood the effect of the claim form and the attached medical certificate.  The effect of the submission of Mrs Shaw QC was that it was necessary to read the claim form and the medical certificate together.  When read together, it was apparent, she said, that the appellant had not asserted in the claim form that he was incapacitated by his back.  That, she said, only appeared in the medical certificate.  She seemed to have an alternative submission that the medical certificate made a claim for compensation on two grounds, namely, the back pain and the anxiety state.  BHP could, she submitted, investigate both claims.  Once BHP had been made aware of the nature of the claims by the attached medical certificate, it could not be deceived.

There are several reasons why these arguments must fail.  First, it is quite apparent that the appellant claimed compensation on the ground that his back injury disabled him from work on 13 to 16 November.  In the latter part of the previous week, the appellant had been assigned to light duties. He had no difficulty performing them.  Before he had lodged his claim for compensation, he had seen Dr Connolly.  As the magistrate found, in the course of that consultation, the appellant had made light of the injury to his back and he did not want it included on the medical certificate. Having received the medical certificate, the appellant then made a claim for compensation to which the medical certificate was attached.  The claim for compensation asks whether the injury caused time to be lost from work and asks the employee to describe the injury and the date when the employee stopped work.  The plain effect of the answers made by the appellant on the claim form is that he stopped work on 13 November because of the injury to his lower back. The appellant has plainly made a claim for compensation for an inability to work on 13 to 16 November because of his back injury, when he had made light of that injury to Dr Connolly and knew he was capable of performing the light duties to which he had been assigned.  On any view, that was a dishonest claim. 

It is also clear that he is claiming compensation for the back injury alone.  Nowhere in the form does the appellant state either that he stopped work because of his anxiety state or that he claimed compensation for his anxiety state.   The fact that a medical certificate was attached to the claim which stated that the appellant was suffering from an anxiety state does not mean that the appellant was also claiming compensation for that condition.  As Mrs Shaw said in the course of her argument, one of the purposes of the claim form is to identify the disability which is claimed so that the employer may, if necessary, investigate the claim.  The reader of the claim form would be entitled to assume that the only claim made was for the back injury and that, although reference had been made to the anxiety state in the medical certificate, no claim for compensation was being made in respect of that condition.  In other words, there was nothing to indicate that it was necessary to investigate a claim for compensation for the anxiety state.

The effect of Dr Connolly’s evidence was that he recommended to the appellant that he should take a few days off work to recover from his anxiety state and that during those few days he should have an X-Ray examination of his back and visit a physiotherapist.  He also told the appellant that it was unlikely that he would be compensated for time off while recovering from his anxiety state.  The appellant knew that he could obtain sick leave.  He had a medical certificate to support the claim for sick leave.  However, instead of claiming sick leave and attending for an X-Ray examination and visiting a physiotherapist in that time, he claimed compensation for the back injury when he knew that the injury to his back did not prevent him from performing the light duties to which he was assigned and that the real reason for his absence from work was his anxiety state.

Mrs Shaw QC also relied on the provisions of ss51, 52 and 53 of the Workers Rehabilitation & Compensation Act but there is nothing in those provisions or the scheme of the Act which assists her.

The magistrate, therefore, was correct in finding the appellant guilty of the offence of making a dishonest claim contrary to s120(1)(b) of the Workers Rehabilitation and Compensation Act.  The appeal is, therefore, dismissed.