Creek v Holden No. Scciv-01-1085

CREEK v HOLDEN
[2002] SASC 60
Magistrates Appeal: Civil

PERRY J. The appellant appeals against his conviction following a trial in the Adelaide Magistrates Court on four counts of dishonestly claiming to be entitled to a payment or other benefit contrary to s 120(1)(b) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”).
BACKGROUND
The appellant commenced full-time employment with Holden Ltd, the respondent, in January 1995. He worked at the Elizabeth assembly plant. His job was to glue and spot weld inner and outer panels of vehicles.
The appellant had a long-standing condition of his spine following an injury which he suffered whilst employed by the New South Wales Fire Brigade. As a result of that injury, in 1984 he underwent a spinal fusion at L4/5 level.
It is common ground between the parties that on 5 November 1996, in the course of his employment by the respondent, the appellant was helping to move a die into position when the crowbar he was holding slipped, jarring his back. As a result, he suffered an aggravation of the pre-existing injury to the spine.
Despite this, he persisted with his day-to-day work until 14 November 1996, when he consulted his general practitioner, Dr Chen. Dr Chen then gave the first of a series of medical certificates certifying that the appellant was unfit for work.
In the events which have happened, he has not returned to work. He had a further operation to the spine in August 1999.
On 15 November 1996, the day after he first saw Dr Chen, the appellant gave to the respondent a notice headed “Notice of Work Related Injury”. In the notice he described the injury as a strain to the lower back.[1]
[1] The respondent is an exempt employer within the meaning of the Act, and there was no requirement for the appellant to give notice to WorkCover.
Insofar as the notice was headed “Notice of Work Related Injury”, there is nothing in the Act which requires a notice to be given in those terms. Presumably the notice was given pursuant to s 51 of the Act which provides in part:
“51(1)Where a worker suffers a compensable disability, notice of that disability must be given-
(a)to the employer by whom the worker is employed at the time of the occurrence of the disability; or
(b)if ......
(2)Notice of a disability should be given-
(a)if practicable within 24 hours after the occurrence of the disability but, if that is not practicable, as soon as practicable after the occurrence of the disability;
(b)if the worker was not, immediately after the occurrence of the disability, aware of the disability - as soon as practicable after the worker becomes so aware;
(c)....” (emphasis added)
In s 3(1) of the Act “disability” is defined to mean “any physical or mental injury ...”, including injuries of the kind therein described.
Separately from the obligation to give notice of a disability, s 52(1) provides that a claim for compensation must be made in a “manner and form approved by the Corporation”.
As the power to approve the manner and form of a claim for compensation under s 52 is not a power delegated to an exempt employer under s 63, presumably it must be exercised by WorkCover, even if the worker is employed by an exempt employer.
Counsel did not refer to any provision pursuant to which WorkCover has approved a particular “manner and form” of making a claim, and I have been unable to locate any regulation dealing with the matter. Perhaps a form has been approved informally. At all events, there was no evidence and no proof offered of a claim being advanced by the appellant, except for the reference to a claim in the Claim Determination Deferral Notice referred to below.
Section 52(2) provides:
“Where notice of a disability is required under this Division[2] a claim for compensation may not be made in respect of that disability unless notice of the disability has been given in accordance with this Division.
[2] Division A which comprises s 51 to s 58C inclusive.
No separate notice of claim as provided in s 52(1) was tendered in the Magistrates Court. There is no evidence that a notice of claim as required by s 52(1) was ever given.
Rather, it appears that the respondent treated the “Notice of Work Related Injury”, not only as a document satisfying the obligation to give notice under s 51, but also as a claim for compensation under s 52.
This would be consistent with the terms of the document headed “Claim Determination Deferral Notice” dated 18 November 1996 addressed to the appellant in which the respondent advised, inter alia:
“At this stage we are unable to determine your claim No 9617140 lodged by you on 15.11.96 in relation to your back disability that occurred on or about 5.11.96.” (emphasis added)
Unassisted by counsel, who did not address on the point, I have been unable to identify any section in the Act pursuant to which a “deferral” notice may be given.
I have paused on these matters, as it seems to me that despite the use of the word “claim” in the deferral notice, the evidence tendered in the Magistrates Court down to the stage of the Claim Determination Deferral Notice did not satisfactorily identify any document as a “claim” for compensation, let alone any document which indicated the precise nature of any claim for compensation which it is said that the appellant made.
It is at least arguable that a claim under s 52 should specify the particular compensation sought: see the observations of King CJ in WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski:[3]
“Section 30 provides that a disability is compensable if it arises from employment. A compensable disability may give rise to a number of entitlements to compensation. There is an entitlement to medical expenses which arises when medical expense is incurred (s 32). An entitlement to compensation for property damage arises when such damage is incurred (s 34). An entitlement to weekly payments by way of income maintenance arises when incapacity for work results from the disability (s 35). Entitlement to compensation by way of a lump sum for non-economic loss arises when the compensable disability takes on the character of a permanent disability (s 43).
The machinery for obtaining compensation is provided in Division VIII. Notice of the disability must be given as soon as practicable (s 51). Section 52 provides for claims for compensation. It is not easy to determine what this section envisages as constituting a claim for compensation. There are indications that the claim contemplated by the section is not a claim for non-specific compensation but is a claim for compensation under one or more of the disparate entitlements conferred by the Act. Thus the prescribed period within which a claim must be made commences ‘on the day on which the entitlement to make the claim arises’, and, as I have pointed out, the Act confers disparate entitlements to compensation. Section 53(3) appears to refer to claims for specific compensation. Section 53(4) speaks of a claim as relating to a particular entitlement, namely income maintenance. Section 53(5) speaks of the rejection of part of a claim and that would not be apposite if the contemplated claim were non-specific in character. On the other hand, the claim must be made ‘in a manner and form approved by the Corporation’ and the approved form on which the worker made his claim made no provision for specific claims.”
[3] (1993) 170 LSJS 129 at 138. In the same case, I concurred with those remarks: ibid at 141.
At all events, the appellant responded to the “Claim Determination Deferral Notice” by making an application in writing, which is undated, to the respondent for “interim payments”. Interim payments of compensation may be made pursuant to s 106(1), pending the final determination of a claim.
In the application for interim payments, which is undated but which must have been received by the respondent before 19 November 1996, the appellant does not specify the nature of the compensation with respect to which an interim payment is sought.
However, by notice dated 19 November 1996 the respondent advised the appellant that the application for interim payments was granted, and explained that payments of income maintenance would be paid into the appellant’s bank account.
It appears that matters rested there until a neurosurgeon, Mr H.R. Schaeffer, examined the appellant on 16 April 1997. He gave a report to the respondent on the same date stating that in his opinion the incident which occurred on 5 November 1996 was consistent with a “temporary aggravation” of the appellant’s pre-existing back condition. He expressed the view that there was likely to be a “spontaneous resolution” of the symptoms emanating from the incident, and that this was likely to occur over a three-month timeframe, following which the appellant would be fit to return “to light duties”.
Although it is not entirely clear from the report, it appears to me that his reference to “light duties” may be the result of a view that the pre-existing back condition rendered the appellant fit only for light duties. Were it to be otherwise, it would be difficult to understand how the use of the expression could be regarded as consistent with the resolution of a temporary aggravation.
At all events, relying on Mr Schaeffer’s report, the respondent then made a determination of the appellant’s “claim”. By notice in writing dated 23 May 1997 it advised the appellant that it accepted the claim “for a closed period only”.
After quoting Mr Schaeffer’s opinion as set out in his report, in the notice of determination the respondent goes on to state:
“The company accordingly determines that since 5 February 1997 you have no longer been incapacitated for work as a result of the compensable disability suffered on 5 November 1996. In the alternative, if you continue to suffer incapacity as a result of the compensable disability suffered on 5 November 1996 (which is denied), such incapacity is partial only and you are fit of (sic) suitable duties which are available with the company. Therefore you have no further entitlement to income maintenance payments and your claim for weekly payments after 5 February 1997 is accordingly rejected.”
Following his receipt of the notice of determination to accept his claim for a closed period, the appellant lodged a notice of dispute with the Workers Compensation Tribunal.[4] In his notice of dispute the appellant stated:
“I dispute the acceptance of my claim for compensation for a closed period only. I maintain that I remain incapacitated by the subject injury and furthermore still require medical services and treatment. No alternative duties have been brought to my attention post 5.2.97.”
[4] See s 90 of the Act.
The proceedings in the tribunal which were initiated by the notice of dispute have never come on for hearing, or if they did, they have not so far been determined.
THE CASE AGAINST THE APPELLANT
The appellant was charged on a complaint alleging seven counts. As I have said, he was convicted on four of them. The counts upon which he was convicted are all in the same terms, except as to particulars of dates.
The first count upon which he was convicted is count 2 which reads as follows:
“STATEMENT OF OFFENCE
On or about the 7 October 1997 [the appellant] dishonestly claimed to be entitled to a payment under the Workers Rehabilitation and Compensation Act 1986 contrary to section 12(1)(b) of the said Act.
PARTICULARS OF OFFENCE
He dishonestly claimed that because of an injury allegedly sustained on about 5 November 1996 he was unable to perform duties with his employer, for the period from 28 September 1997 to 31 October 1997 inclusive whereas he well knew that the effects of such injury, if any, did not incapacitate him for such duties.”
At some stage, just when was not made clear during the hearing of the appeal, the appellant sought further particulars of the charges. As to count 2, the further particulars which were supplied were as follows:
“FURTHER PARTICULARS
On 24 September 1997 the defendant attended upon Dr Chen and reported to him on his condition.
The defendant knew that he was not totally incapacitated for duties at Holden, and that he could perform alternative duties at Holden.
Dr Chen supplied the defendant a medical certificate dated 24 September 1997 in which he stated inter alia words to the effect that the defendant would be totally incapacitated for work at Holden for the period from 28 September 1997 to 31 October 1997.
On or about 7 October 1997 the defendant either himself or by other means presented that medical certificate to Holden by which the defendant claimed to be entitled to a payment of income maintenance for the period specified in the certificate, well knowing the above.”
Similar particulars were given with respect to each of the other counts. All of the counts related to medical certificates which were furnished by Dr Chen and passed on to the respondent by the appellant.
Following his first attendance upon the appellant on 14 November 1996, Dr Chen continued to see the appellant from time to time. As well, he referred him to an orthopaedic surgeon, Mr Fry. He was also seen by another orthopaedic surgeon, Dr Osti.
It is unnecessary to go further into the history of the various treatments which were offered to the appellant, and the opinions which were expressed as to his fitness for work in the period leading to September 1997. It is sufficient for present purposes to focus upon his dealings with Dr Chen, as to which I will in the first place deal with those relevant to count 2.
Count 2 is based on the presentation of a medical certificate to the respondent, that certificate being a certificate furnished by Dr Chen on the occasion of the appellant’s attendance upon him on 24 September 1997.
Dr Chen was called by the respondent to give evidence as part of the respondent’s case against the appellant.
Dr Chen’s evidence as to the respondent’s attendance on that day was that, on examination, the appellant complained of tenderness at the L3/4 and L4/5 level of the back, but that pain radiating down the right leg, although still present, was less pronounced. The appellant said that he was keen to have an operation, and that he was due to see Mr Osti, the orthopaedic surgeon, on the following Friday, that is, 26 September 1997.
Dr Chen gave to the appellant a script for Panadeine Forte and Serepax, and gave him a medical certificate. This was on a printed form into which Dr Chen inserted variable particulars. In the certificate Dr Chen stated that the appellant was still suffering from back pain, and that he would be “incapacitated for work” from 28/9/97 to 31/10/97.
The printed form which Dr Chen signed included a reference to other degrees of capacity for work, such as a line which reads that the worker “is fit to return to modified duties” from a period to be indicated.
The appellant saw Mr Osti, as he had indicated to Dr Chen was his intention, on 26 September 1996. The appellant told Mr Osti that he was “getting worse and could not cope”.
In the meantime, unbeknown to the appellant, on the same day that he had seen Dr Chen, namely, 24 September 1997, an insurance investigator commenced a series of clandestine observations of the appellant.
During the course of his investigations, the investigator followed the appellant on a camping trip to Swan Reach. He met up with friends at the caravan park at Swan Reach, following which he camped out with them for two or three days.
During that period the investigator obtained film of the appellant engaged in various tasks, some of which clearly involved comparatively heavy exertion on the appellant’s part. For example, at one stage he was seen to lift a motor, with the help of another man, from a boat. He was seen to be active in cooking and bending over to obtain food and to put a kettle on the fire. He was seen carrying objects up and down what was described as a steep bank, and at one stage was seen carrying a mattress. Other objects which he was seen to lift included a gas cylinder, which was said to be of 3.5 kilograms weight.
Some of the medical practitioners who gave evidence expressed the view that the activities depicted on a film of the investigator’s observations were inconsistent with the appellant’s presentation to them and with the assessment which they had previously made as to the extent of his disability.
Largely by reference to the view which he took as to the significance of the activities depicted on the film of the camping trip, the learned trial magistrate reached the conclusion that when the appellant saw Dr Chen on 24 September 1997, he was capable of light duties and should not have been certified as “incapacitated for work”.
The learned trial magistrate further concluded, inter alia:
“... the defendant was capable of performing light duties at the relevant time and he was consciously aware he was capable of performing those duties having performed more onerous duties involving bending, turning or twisting on the river trip.
I am also of the opinion that the defendant intentionally set out to deceive Dr Chen about his medical condition knowing Dr Chen would write out a medical certificate to the effect he was unfit for any work and thereby the defendant would obtain WorkCover benefits.”
The learned trial magistrate made no discrete or specific finding as to the appellant’s capacity for work, or any such finding as to what might have passed between the appellant and Dr Chen with respect to each of the occasions upon which any of the medical certificates relating to the convictions was given.
However, Dr Chen’s certificates, which formed the basis of the other three counts upon which the appellant was convicted, certified him as incapacitated for work between 1 November 1997 and 31 January 1998.
There was conflicting evidence given during the course of the trial as to whether or not offers of light duties were made by Holden to the appellant. The latter denied that he had ever been offered light duties during the period in question, but the learned trial magistrate accepted the evidence of a claims co-ordinator from the respondent, namely, Mrs Compton, that she had telephoned an offer of light duties to the respondent on 1 October 1997, to which the appellant is alleged to have responded by saying that he could not perform light duties, or that his doctor had advised him that he could not do so.
It is important to note the circumstances in which the four medical certificates issued by Dr Chen, which in an evidentiary sense were the foundation of the prosecution case on each of the four counts upon which the appellant was convicted, were handed over to the respondent by the appellant.
The learned trial magistrate accepted the evidence of the appellant that he took the first four medical certificates issued by Dr Chen to Holden by hand, delivering them to a worker’s compensation officer at Holden, but that he posted the subsequent certificates to the respondent as “... it was too painful to walk that distance”. Amongst the certificates which were posted were the four certificates the subject of the counts upon which the appellant was convicted.
The evidence is fragmentary as to why it was that the appellant obtained the certificates and sent them to the respondent.
As far as I have been able to ascertain from the transcript, the only evidence on the topic was the uncontradicted evidence of the appellant that he did so in compliance with a suggestion by Mr Kevin Prunty, a rehabilitation officer employed by the respondent. The appellant’s evidence was “... Kevin wanted me to keep him informed by sending him medical certificates of my situation.” He said further that Mr Prunty suggested that rather than walking to the respondent with the certificates, he could mail them in.
Against that background a serious question arises as to whether or not, irrespective of any view which the learned trial magistrate might have come to as to the appellant’s fitness for work, the evidence was capable of sustaining the convictions, having regard to the manner in which the charges were particularised.
CONCLUSIONS

Putting aside any question of dishonest intent, did the respondent prove that the appellant “claimed to be entitled to a payment of income maintenance for the period specified in the certificate”?
In my opinion, the answer to the question which I have just posed must be in the negative.
In that respect, I accept the submission of Mrs Shaw QC for the appellant that the delivery of the certificates by the appellant to the respondent could not properly be characterised as the making of a claim to be entitled to the payment of income maintenance, or for that matter, any other benefit under the Act.
What had been treated as a claim for income maintenance by the appellant became the subject of the notice of dispute which in turn fell to be determined by the Workers Compensation Tribunal. The notice of dispute had been lodged some months before the relevant period, namely, on 26 May 1997. At the time the certificates the subject of the four counts in question were delivered to the respondent, the appellant was not in receipt of income maintenance, payments of income maintenance having been suspended. He was living on social security.
When he delivered the certificates to the respondent, the appellant did not make any oral or written request that income maintenance be paid to him. In any event, any such request would have been futile, given the fact that the respondent was defending the proceedings in the Workers’ Compensation Tribunal. The appellant could have had no expectation, and could not have held any reasonable expectation, that the furnishing of the certificates to the respondent could in any way advance any previous claim which he might have made for payment of income maintenance. If he had been aware of the content of the certificates, and I point out below that there was no evidence that he was, the most that could be said is that he might have believed that the certificates would, in some general, non-specific manner, help his case against the respondent.
But even although there was evidence that the appellant had made a claim for “interim payments”, that claim could not be regarded as active or ongoing once the determination dated 23 May 1997 was made. Any further claim for income maintenance thereafter (and there is no evidence of any such claim being made), could not answer the description of a claim for “interim payments”.
If, as the appellant asserted in his unchallenged evidence to have been the case, by passing on the medical certificate, the appellant was doing no more than responding to a request by the employer to be kept informed of his condition, this could not possibly amount to a “claim to be entitled to a payment of income maintenance”.
There were other lacunae in the chain of proof which it was necessary for the respondent to establish if it was to secure convictions on the charges as laid.
The most which could possibly be made of the evidence adduced by the respondent was that the appellant might have misled Dr Chen as to the true extent of his disability, although it is doubtful whether the evidence could sustain even that conclusion. The mere failure by the appellant to mention to Dr Chen that he was shortly going on a fishing trip, or the failure after the fishing trip to describe to Dr Chen the activities which he was able to perform during the fishing trip, does not carry the matter any further.
Central to proof of the charges, was the requirement that the respondent establish that the appellant dishonestly made a claim of the kind alleged. But there was simply no evidence before the learned trial magistrate that the appellant even read the certificates before delivering them to the respondent.
Even if, contrary to the view which I have expressed, the delivery of the certificates to the respondent should properly be construed as the making of a claim “to be entitled to a payment of income maintenance for the period specified in the certificate”, on no possible view of the evidence could the necessary mental element be found to have been proved.
It follows that however the matter is approached, there was no evidence which could sustain the convictions in question.
Before parting with the matter, I should say that after the hearing of the appeal, counsel for the respondent made extensive supplementary written submissions, which included a copy of very detailed submissions made to the learned trial magistrate. The appellant responded by delivering to me a copy of their equally extensive and detailed submissions made in the court below.
Towards the end of that process, which could only be described as a “paper war”, counsel for the appellant urged me to refrain from reading what she suggested were misleading and inaccurate submissions from her opponent.
The written submissions followed a direction given by me that the respondent might furnish to the Court a copy of its Magistrates Court submissions, and that it might also reduce to writing a response to a lengthy set of supplementary submissions in writing which had been handed up, late in the day, by counsel for the appellant.
In deference to the request by counsel for the appellant, I have not read this additional material, but it has been checked by my Associate. I am satisfied that it does not touch upon the limited grounds upon which I am disposing of the appeal, except that Mr Apps made clear, in the Magistrates Court submissions, that he contended that the lodgement of a medical certificate, which he described as a workers compensation certificate, should be regarded as the making of a “claim” for weekly payments by way of income maintenance pursuant to s 35 of the Act. For the reasons which I have given, I reject that submission. A medical certificate may often be lodged to support a claim for weekly payments of income maintenance. But the mere lodgement of such a certificate, in the circumstances of this case, cannot properly be regarded as the making of such a claim.
I would allow the appeal and quash the convictions and orders entered and made by the learned trial magistrate. I would substitute an order dismissing the complaint.
I so order.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE
1. The respondent is an exempt employer within the meaning of the Act, and there was no requirement for the appellant to give notice to WorkCover.
2. Division A which comprises s 51 to s 58C inclusive.
3. (1993) 170 LSJS 129 at 138. In the same case, I concurred with those remarks: ibid at 141.
4. See s 90 of the Act.

[2002] SASC 60

27 February 2002