Cooper v Forestry Tasmania

[2002] TASSC 6

[2002] TASSC 6

CITATION:                 Cooper v Forestry Tasmania [2002] TASSC 6

PARTIES:  COOPER, Stephen Robert
  v
  FORESTRY TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 54/2001
DELIVERED ON:  1 March 2002
DELIVERED AT:  Hobart
HEARING DATES:  8 February 2002
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Assessment and amount of compensation - Cessation of payments - Particular grounds - Recovery of worker - Service of medical certificate - Identification of the injury in respect of which weekly payments are made.

Workers Rehabilitation and Compensation Act1988 (Tas), s86(1)(c).

Pataki v University of Tasmania [2000] TASSC 144, followed.

Aust Dig Workers Compensation [232]

REPRESENTATION:

Counsel:
             Appellant:  S Taglieri
             Respondent:  D J Gunson
Solicitors:
             Appellant:  Phillips Taglieri
             Respondent:  Gunson Williams

Judgment Number:  [2002] TASSC 6
Number of Paragraphs:  30

Serial No 6/2002
File No LCA 54/2001

STEPHEN ROBERT COOPER v FORESTRY TASMANIA

REASONS FOR JUDGMENT  UNDERWOOD J

1 March 2002

1. This is an appeal against an order of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") constituted by Commissioner Chandler.  The respondent terminated the appellant's weekly payments in accordance with the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(1)(c). The appellant referred the notice given him pursuant to the Act, s86(3), to the Tribunal in accordance with s86(4). The Tribunal dismissed the reference and that order of dismissal is the subject of this appeal.

1. For present purposes, the facts can be shortly stated as follows.  The appellant was employed by the respondent as a labourer.  On 1 March 1994, he fell heavily on his tail bone.  The fall arose out of and in the course of his employment.  The appellant sought medical advice and was certified unfit for work for a few days.  His claim for compensation was not disputed and weekly payments were made.

1. The appellant returned to work shortly after the accident and thereafter remained continuously at work for 3½ years.  From time to time following his return to work, the appellant suffered from occasional backaches.  He described them as "flare-ups".  Towards the end of the 3½ year period, the appellant also developed pain in his groin.  In September 1997, he consulted his general practitioner with respect to his pain and was certified fit for light duties.  The pain persisted and the appellant was then certified totally incapacitated for work for a period of time.

1. The Tribunal found that at the time the s86(1)(c) certificate was issued, there was some incapacity for work. There is no challenge to that finding. The issue in the Tribunal was the cause of that incapacity. There were competing medical opinions. One view was that there had been a complete recovery from the soft tissue injury suffered on 1 March 1994 and that the incapacity that commenced in September 1997 was due to degenerative change unconnected with the 1994 accident. The other view was that in the 1994 accident, there occurred an acute axial overload to the appellant's spine which caused damage to an endplate and that this damage, in turn, caused a degenerative response.

1. It is unnecessary to canvass the detail of this evidence.  The Tribunal concluded that the evidence that incapacity in and after 1997 was not causally related to the 1994 accident was to be preferred.  I would like to interpolate that, with respect to the learned Commissioner, his written reasons for reaching that conclusion are clear, simply expressed and well reasoned.  No fault in them can be detected. 

1. The events which led to the making of the impugned order were as follows:

(a)  No weekly payments were made between the time the appellant returned to work in 1994 and September 1997.

(b)  On 18 April 1997, the appellant consulted his general practitioner.  A certificate was issued but it did not certify that the appellant was unfit for work and no time off work was taken.

(c)  The appellant consulted his general practitioner again on 22 September and 25 September 1997.  On the latter date, a certificate was given certifying the appellant to be partially incapacitated for work.

(d)  There followed a number of certificates over the ensuing years certifying either total or partial incapacity for work.

(e)  The appellant gave the respondent the certificate dated 18 April 1997 and/or the ones dated 22 September and 25 September 1997.  The respondent did not dispute the certificates and after, 25 September 1997, weekly payments were made in accordance with their terms.

(f)  At the request of the respondent, the appellant was examined by Dr Buzzard on 9 March 2000. 

(g) Following the examination, Dr Buzzard issued a certificate pursuant to the Act, s86(1)(c), certifying that in his opinion the appellant had "wholly recovered from the effects of the injury in respect of the accident of the 1st March 1994 and in respect of which payments of weekly compensation are being made". Dr Buzzard further certified that in his opinion "any incapacity from which [the appellant] is suffering is not as a result of the injury that occurred on the 1st March 1994". Finally, Dr Buzzard certified that in his opinion "any incapacity or disability from which [the appellant] is suffering is no longer due wholly or substantially to the claimed injury of 1st March 1994".

(h)  That certification, together with the appropriate statutory letter, was forwarded to the appellant and, as I have said, the matter was referred to the Tribunal for determination.

1. The Tribunal correctly determined that its task was to ascertain whether, as is provided by the Act, s86(1)(c), the appellant had "wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that [the appellant's] incapacity is no longer due, wholly or substantially, to that injury".

1. All the grounds of the notice of appeal from the Tribunal's determination, except ground 3, rest upon the proposition that the Tribunal erred in law in determining that the relevant injury was the one that occurred in March 1994.

1. The inquiry in the Tribunal was prescribed by the Act, s86(1)(c). It was:

(a)whether there had been compliance with the relevant provisions of the Act; and

(b)whether at the relevant time, the appellant had:

(i)   wholly or substantially recovered from the effects of the injury in respect of which the payment is being made; or

(ii)  any incapacity is no longer due wholly or substantially to that injury.

1. The cornerstone of the Act is s25. It imposes liability to "pay compensation in accordance with this Act" upon the occurrence of either of the events prescribed by subs(1). The first of those events is relevant in a case such as this. It is a worker suffering an injury (not being a disease) arising out of and in the course of his employment. The compensation that the employer is thereupon liable to pay is that prescribed by other sections in the Act such as s69 (weekly payments), s71 (lump sum payments ¾now permanent impairment payments), and s74 (medical and other services).

1. Payment of all compensation is dependent upon there being (inter alia) a causal relationship between the incapacity or other entitling event and the injury referred to in s25.

1. Counsel for the appellant's initial submission was that the Tribunal erred in not finding that payments were made "with respect to a recurrence of the injury suffered on 1 March 1994". However, she accepted that, prior to the amendment of the definition of "injury" in the Act, s3, by Act No 99 of 2000, s25 imposed no liability to pay compensation in respect of a recurrence of an injury. Counsel then submitted that the Tribunal erred in failing to find that "the injury in respect of which payment is being made occurred in or about September 1997".

1. It seemed to me that counsel's submission was, in effect, because payments were not made (or recommenced) until September 1997, or because there was no incapacity until that time, the Tribunal should have found that the relevant injury was suffered in September 1997.  This submission is akin to one that was put by counsel for the appellant in the Full Court in State of Tasmania v Beadle [2001] TASSC 122. With respect to it, I venture to repeat the following passage from my reasons for judgment in that case at pars28 - 30:

"Miss James submitted in this Court that the first issue in this case was whether the respondent suffered an injury, viz, any injury at all. If yes, the next issue was whether such injury fell within the provisions of the Act, s25; if yes, whether there had been compliance with the statutory requirements with respect to giving notice of that injury and making a claim for compensation; and finally, if yes, whether incapacity for work resulted from the proved injury.

In my view, that submission runs completely contrary to the scheme of the Act. If it was correct, it would mean that a respondent to a referral would go to a hearing without any advance notice of the case he or she had to meet. In my view, the scheme of the Act is quite clear.

(a)Section 25 provides the basis for liability to pay compensation. That liability depends upon the worker having suffered an injury of the type prescribed by the section.

(b)In the event of such an injury having been suffered, the Act, s32, prohibits entitlement to compensation 'for an injury' unless, within the time constraints specified in the section, the worker:

(i)   has given 'notice of the injury'; and

(ii)  has made a 'claim for compensation with respect to the injury'.

(c)By virtue of the Act, s81(1), an employer who has received 'a claim for compensation in relation to an injury' must start making weekly payments as prescribed by the section unless he or she invokes the provisions of ss81AA or 81A.

(d)Section 81AA merely gives an employer time to consider a claim for compensation, but s81A lays down a procedure for disputing liability 'to pay compensation by way of weekly payments for an injury referred to in s81(1)' and for disputing liability to pay the cost of benefits 'in respect of the injury'.

(e)If the Tribunal determines that a dispute raised pursuant to s81A is a genuine dispute, it may order that no payments be made and that is the end of that claim for compensation unless the worker refers it to the Tribunal pursuant to the Act, s42.

(f)Section 42 gives the Tribunal jurisdiction. It provides that what may be referred to it for determination is 'a claim for compensation'.

The Act makes it clear that liability to pay compensation is confined to identifiable injuries. Were it otherwise, upon receipt of a claim for compensation, an employer would not know whether to dispute liability or not. Were it otherwise the employer would not know if he or she had been given notice in accordance with the Act, and were it otherwise, the employer would find it very difficult to investigate the circumstances of a claim to decide whether it should be disputed or not."

1. The day after the appellant fell on his tail bone, his medical practitioner issued a medical certificate which certified (inter alia) that:

·    the appellant presented with a provisional diagnosis of "acute (illegible) of lower back";

·    the worker stated the condition was caused by incident on 1 March 1994;

·    the injury was stated to be caused by "worker fell while cutting pine trees";

·    the condition is consistent with the stated cause.

1. On 18 April 1997, the same medical practitioner certified that:

·    the worker presented with a provisional diagnosis of "effects of injury to lower back";

·    the worker stated the condition to be caused by an incident which occurred on 1 March 1994;

·    the injury was stated to be caused by "fall whilst cutting pine trees";

·    the condition is consistent with the stated cause and an aggravation of an existing condition.

1. Certificates in virtually identical terms, all referring to an incident that occurred on 1 March 1994, were issued on 22 September, 25 September, and on several occasions thereafter.  Later certificates were not completely filled in and many of them just stated "as before".

1. As mentioned, Dr Buzzard's certificate states that it is concerned with the injury that occurred on 1 March 1994. 

1. The injury in respect of which payments were being made was identified by the certificates dated 22 and 25 September 1997 and thereafter. By those certificates, the worker claimed that he was incapacitated from working by reason of an injury that occurred on 1 March 1994. Whether he was or was not incapacitated from working by reason of the injury that occurred on 1 March 1994 was the focus of the proceedings before the Tribunal and the focus of the reasons for dismissing the reference. That focus was in accordance with the Act, s86(1)(c), as the incident on 1 March 1994 was clearly the injury in respect of which weekly payments were being made. It was that injury because the appellant's document, in response to the receipt of which the respondent made, or recommenced weekly payments, claimed that the injury in respect of which incapacity for work had resulted was the one that occurred on 1 March 1994.

1. Ground 3 of the notice of appeal complains:

"That the Learned Commissioner failed to provide reasons for rejecting the submission of the Counsel for the Worker to the effect that for the Employer to be successful on the reference it was necessary for him to prove that the Worker's incapacity had ceased at a time after the acceptance of the claim in April 1997."

1. The following is an edited version of the submission taken from the transcript of the proceedings in the court below.

"It is my submission that because the employer accepted the recurrence, if you like, or aggravation … as being the result of the initial injury in March 1994, then in order to be successful on this application the employer must point to something that happened after that time or a change in the cause of incapacity that occurred after that time."

1. In my view, there is no substance in ground 3. The obligation upon the Tribunal with respect to giving reasons for its decisions is enacted by the Act, s61(3), and the extent of that obligation is explained by the following passage taken from the judgment of the learned Chief Justice in Pataki v University of Tasmania [2000] TASSC 144 at par14 (reported (2000) 9 Tas R 397, but not on this point):

"In Attorney-General for Tasmania v Smith A87/1994, Zeeman J said at 8 - 9:

'The appellant has raised as a ground of appeal what is said to be an error of law on the part of the Commissioner in failing to give any sufficient or adequate reasons. As Underwood J has recently explained in Australian Securities Commission v Schreuder A79/1994, it is 'an incident of judicial duty to give adequate reasons for judgment and that a failure to do so constitutes an error of law.' His Honour was speaking of the common law duty. The Act, s61(3) imposes an express obligation on the Commissioner to provide a written statement of his reasons for making a determination which is given effect to by an order in respect of a claim for compensation. The principles expressed by Underwood J are of equal application to the statutory duty imposed by s61(3). An application of those principles required that the Commissioner:

1make findings with respect to the essential facts relied upon by the parties relevant to the references before him;

2where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;

3where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;

4expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court.'

See also Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Gulf Industries Pty Ltd v Barnett (1996) 6 Tas R 142; McCain Foods (Aust) Pty Ltd v Williams 25/1997; Roberts Ltd v Barker 137/1998; Barnett v Gulf Industries Pty Ltd [1999] TASSC 4. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Kirby P said at 258:

'This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law.  That does not exempt the judge from logical and reasoned decisions on questions of fact duly justified where they have been contested.  On the contrary, because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished.'

His Honour went on at 259 to say:

'This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion.  But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.  Only if this is done can this Court discharge its functions, if an appeal is brought to it.  Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.  Justice has not been done and it has not been seen to be done'."

1. There is no obligation on the Tribunal to deal with every submission that is put to it.  As I have already remarked, the reasons for judgment are detailed, clear and well reasoned and there is certainly no error as is alleged by the notice of appeal, ground 3.

1. The foregoing reasons are sufficient to dispose of this appeal.  However, it seems to me that this case highlights problems that are likely to attend the proposition that a medical certificate tendered after a period during which there have been no certificates, constitutes a claim for compensation.  This was the view of the learned Chief Justice when presiding in the Full Court in G L & N Barber Pty Ltd v Ryan (1999) 8 Tas R 308. In that case, neither the unreported judgment at first instance (87/1998), nor the report of the Full Court judgment, discloses whether the medical certificate in respect of which the worker claimed weekly payments asserted that the injury in respect of which there was claimed incapacity for work, was the one that occurred in February 1995 and in respect of which a s32 claim for compensation had been made and was not disputed. However, it seems likely that this was the case. In Barber at 320, the learned Chief Justice said the consequence of failing to invoke the dispute procedure provided by the Act, s81A, results in the employer having accepted liability "in respect of that claim" [original emphasis].

1. The Act, s81AB, provides that a failure to invoke the dispute mechanism enacted by s81A, means that the employer "is taken to have accepted liability in respect of that claim". Acceptance of such liability necessarily means acceptance that the worker suffered the injury referred to in the claim for compensation and that such injury was one that fell within the provisions of the Act, s25.

1. The learned Chief Justice did not deal with the question of what the employer is entitled to dispute upon receipt of a medical certificate following a period during which no medical certificate has been supplied. Is the employer entitled to dispute that there was a compensable injury within the meaning of the Act, s25, on the date referred to in the medical certificate. If yes, then it means that an employer is entitled to dispute a matter in respect of which he has already accepted liability. It might be thought by some to be a novel approach to enable the issue of whether or not there was a s25 injury to be litigated on several occasions. See Electrolytic Zinc Company of Australasia Ltd v Maister [1990] Tas R 91; FAI General Insurance v Morrisson (1993) 2 Tas R 9; Chorley v Hazell Ltd 17/1993. As Evans J said in State of Tasmania v West [2001]TASSC 62 at 1, "[o]rdinarily once a claim for compensation has been made, a worker's presentation of a further medical certificate in relation to that claim does not amount to a fresh claim for compensation for the purposes of the Act, s81A." However, in addition to the judgment of the learned Chief Justice in Barber, that such a certificate, if presented after a substantial gap, is a fresh claim for compensation, even if the certificates certifies incapacity resulting from an injury in respect of which s81B applies, Slicer J held in State of Tasmania v Cook (1999) 9 Tas R 191, that if a certificate certifies that incapacity is due to a condition different from the one referred to in previous certificates and also certified for the first time that the worker is wholly incapacitated for work, this too, is a claim for compensation within the meaning of the Act, s81A.

1. It seems to me with great respect to those who take a different view, that these approaches do not give sufficient weight to the fact that the medical certificate certifies that there is incapacity with respect to an injury which, by operation of s81AB, was one that arose out of and in the course of the employment. However, the judgment of the learned Chief Justice in Barber has now found legislative expression in the Act, s69(13), a provision inserted by Act No 99 of 2000. It provides:

"(13) If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."

1. Prima facie, this provision appears to be at odds with s80A which was also inserted by Act No 99 of 2000 and 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."

1. So far as I can see at the moment, there is a strong argument that whenever a medical certificate described by s69(13) is received by an employer, even if it certifies (in effect) that incapacity is due to an injury in respect of which an employer has already accepted liability, that employer is entitled to invoke the dispute mechanism and put the worker to proof that the claimed injury was one that arose out of and in the course of his employment or, in the case of a disease, one to which the employment contributed to a substantial degree. Further difficulties may well arise with the amendment to the definition of injury which now includes:

"The recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."

1. Most claims for compensation, made after a cessation of a period of continuous certification, arise not because there has been a recurrence of the injury, but because there has been a recurrence of incapacity due to the original injury.  However, none of these issues were argued on this appeal and it is not appropriate that I canvass them any further. 

1. In this case, even if, by the resumption of weekly payments in September 1997, and the failure to invoke the dispute mechanism provided by the Act, s81A, the respondent thereby admitted, not only the occurrence of a compensable injury on 1 March 1994, but also that in September 1997 incapacity for work resulted from that injury, the finding of fact by the Tribunal was that at the material date such incapacity was no longer due to that injury. The appeal is dismissed.