Forestry Tasmania v Peterson

[2000] TASSC 67

[2000] TASSC 67

CITATION:                 Forestry Tasmania v Peterson [2000] TASSC 67

PARTIES:  FORESTRY TASMANIA
  v
  PETERSON, Michael John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 130/1999
DELIVERED ON:  16 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  19 May 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of tribunals, boards, commissioners, etc - Tasmania - Dispute procedure enacted by s81A - Form of notice of dispute - Whether documents can be read together to constitute notice.

Workers Rehabilitation & Compensation Act 1988 (Tas), s81A.

Jones v Jones (1996) 6 Tas R 273; Chorley v Hazell Ltd 17/1993; Gardner v Hansen & Yuncken Pty Ltd, 63/1996; Griffiths v Devonport Youth Accommodation Services Inc A39/1996; Thornton v Terry Cox 60/1994; Hawkins v Mercury Walch Pty Ltd 22/1996, referred to.
Aust Dig Workers Compensation [143].

REPRESENTATION:

Counsel:
             Appellant:  J R McDonald
             Respondent:  D J Barclay
Solicitors:
             Appellant:  Forestry Tasmania
             Respondent:  Temple Smith Barclay

Judgment Number:  [2000] TASSC 67
Number of Paragraphs:  12

Serial No 67/2000
File No LCA130/1999

FORESTRY TASMANIA
v
MICHAEL JOHN PETERSON

REASONS FOR JUDGMENT  SLICER J

16 June 2000

1. The respondent gave notice of an injury, said to have occurred on 4 November, to an employer on 23 November 1998.  A claim for compensation was made on 29 April 1999 pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act") which described the occurrence as: "developed severe sciatica as a result of herniation/rupture of S1/L5 spinal disc in the course of "travelling from Hobart to Devonport". The medical certificate stated the circumstances to be a "prolonged journey in 4WD vehicle on 4 November 1998 to Geeveston". The diagnosis made was "prolapsed disc at L5 S1 (word indecipherable) 9/12/98 at Calvary Hospital".  The cause of the condition was stated to be "a disease, symptoms of which became evident on 16 November 1998."

1. The claim was complex and confusing.  The occurrence was stated by the respondent to have occurred whilst travelling from Hobart to Devonport, whilst the medical certificate referred to Geeveston.  The respondent stated that symptoms were said to have become evident on 4 November whilst the medical certificate referred to 16 November.  The condition was said to have been caused by "disease", rather than "accident".  Those matters required investigation and careful consideration. 

1. The employer wrote to the respondent on 7 May 1999 in the following terms:

"RE:     Workers Compensation Claim

I have received your workers compensation claim dated 29 April 1999, and workers compensation medical certificate dated 28 April 1999.

Unfortunately, there is some uncertainty regarding the claim at present. The Act states that a claim must be determined within 14 days of receipt of the claim. This places time constraints upon Forestry Tasmania to make a fully informed decision. If we cannot obtain the medical information we require to make a decision within 14 days the only avenue we have to obtain extra time is to lodge a dispute before the Workers Rehabilitation and Compensation Tribunal. Enclosed is a copy of the dispute notice that is required, under the Workers Rehabilitation & Compensation Act 1988, to be sent when a dispute arises.

When a claim is in dispute a hearing will take place at the workers Rehabilitation & Compensation Tribunal.  You are entitled to a union or legal representative in the Tribunal.  The hearing is to determine if a dispute exists between the employer and employee.

In the event that a genuine dispute is found you have the right to appeal under Section 42 of the legislation.

Of course, it may be that we receive the specialist medical report before this occurs, and if it is satisfactory the claim will be accepted.

In the meantime, an appointment has been made for you to see Mr Hunn (a neurosurgeon) (at Forestry Tasmania's expense) to confirm the mechanism of injury.  Details will be provided in a letter to follow shortly.

Once Forestry Tasmania has received the required information your claim will be reviewed.  However until then any costs associated with the treatment of your back condition will have to be borne by you.

Please contact me if you have any queries or concerns."

1. The accompanying notice was in the nature of referral and reads:

"Workers Rehabilitation and Compensation Act (1988)

REFERRAL TO TRIBUNAL, S81A

To the Registrar, Workers Rehabilitation and Compensation Tribunal

Employer	Forestry Tasmania 79 Melville Street, Hobart 7000	Phone No: 6233 8195
Worker	Michael John Peterson c/- Spreyton Post Office, Spreyton	Phone No: 6427 2428
Insurer:	Self Insurer

1I, Cornelia Suttil, being the authorised agent of the employer of Michael John Peterson, who has made a claim for compensation under the Act in relation to an injury, dispute any liability to pay compensation by way of weekly payments and/or cost of benefits under Division 2 of Part VI in respect of the injury

2         I hereby refer the matter to the Tribunal under Section 81A

3I have notified the worker in writing that I dispute liability to pay compensation and have informed the worker of my reasons for disputing liability.

4         Weekly payments are not being made to the worker.

5         I enclose the required documents with this referral.

My reasons for disputing liability to pay compensation are as follows:

1The worker failed to provide notify of injury within a reasonable period of time.

2There is insufficient medical evidence to determine the nature of the alleged condition.

3There is insufficient evidence to establish a causal nexus between work activities and the alleged medical condition."

1. The combined effect of the two documents was that:

(1)       the employer sought time to make further investigation;

(2)       statutory time limits inhibited the making of a final decision;

(3)       The employer disputed liability to pay compensation;

(4)       the reasons for disputing liability were:

(a)       failure to provide notice of injury within a reasonable time;

(b)       insufficient evidence to establish causation;

(5)       no weekly payments were being made;

(6)when a claim is in dispute, a hearing would take place and that the respondent was entitled to representation at such hearing;

(7)       there existed a right of appeal;

(8)       the employer sought a further medical examination;

(9)       there would be a review of the claim when more information had been received.

1. The referral to the Registrar of the Workers Rehabilitation and Compensation Tribunal was accompanied by the letter of 7 May which was described as a "letter to employee under s81A(1)". Both parties to this appeal agree that it was not appropriate for the applicant to have sought the application of the Act, s81AA.

1. The respondent successfully contended before the Tribunal that the process followed by the applicant was not in accordance with the Act, s81A(1)(c) The successful argument was based on the analogy with the statutory requirements of certification as stated in the Act, s86.

1. The Commissioner accepted that both documents had been received by the respondent at the same time within the prescribed time.  He stated, at 3, that since a decision to dispute liability can have serious repercussions to an employee:

"it is … necessary, that the notice required by Section 81A(1)(c) be expressed in clear and unambiguous terms."

and as to that notice:

"It is clearly apparent from a reading of the above letter that it does not, by itself, inform the worker of the employer's reasons for disputing liability for his claim. The letter is totally silent on that subject. I therefore determine that the employer's letter does not, by itself, constitute a notice sufficient to satisfy the employer's obligation imposed by Section 81A(1)(c)."

1. That statement is unexceptionable. But if the letter incorporates the referral, then all of the information required by the Act s81A(1)(c) was provided to the respondent. The learned commissioner referred to the terms in the letter which stated:

"Enclosed is a copy of the disputed notice that is required, under the Workers Rehabilitation and Compensation Act 1988, to be sent when a dispute arises.

and decided:

"I have difficulty in understanding this sentence.  It describes the enclosure as 'a copy of the disputed notice' yet the document to which it apparently refers is entitled 'Reference to Tribunal S.81A'. It asserts that the Act requires the notice to be sent when a dispute arises but it does not make clear to whom it is to be sent. If this is interpreted to mean that the Act requires the employer to deliver a copy of the referral to the worker when a dispute arises, then this advice is clearly wrong. No such obligation is imposed upon the employer by the Act. Apart from these difficulties in making sense of this part of the letter, a more critical flaw, in my view, is the absence of any wording in the letter which makes it evident to the worker in clear and unambiguous terms that the enclosure is incorporated with the letter so that both documents are to be read together. Such wording is particularly necessary in this instance when the documents were not annexed either by staple or other means and where the referral is addressed to the Registrar of [sic] the Tribunal and the contents of that document are clearly provided for the information of the Registrar or the Tribunal. The absence of such wording in the circumstances of this matter lead me to the conclusion that the letter and the reference cannot be read as one document."

The reference is "annexed either by staple or other means" appears to be a reference to a statement by Zeeman J in Jones v Jones (1996) 6 Tas R 273, although that reference was peculiar to the facts of the case. The learned commissioner relied on the following statement by Wright J in Gibsons Ltd v Jeffrey (1993) 2 Tas R 375 at 384 - 385:

"A certificate is not necessarily invalidated because it contains material additional to that required by the relevant statute (see Everett J in Knowles v Plumpton, A37/1980 at 8) but it is quite another thing to say that several separate documents can be regarded as 'a certificate' complying with the Act. Whilst s86(1)(c) does not specifically refer to 'a certificate', this is the description used in both s86(2) and (3)(b). Even if they emanate from the one source and contain related material I cannot see how two or more documents can be regarded as 'a certificate' for the purposes of s86(1)(c) unless they are all annexed to each other and one such document unequivocally incorporates all other annexures so that together they effectively constitute or become one single document."

1. The scheme of the legislation is based on the method of certification.  As such, the requirements attaching to certification have been strictly interpreted (Chorley v Hazell Ltd 17/1993, Lawless v Hazell Bros, 30/1995, see generally Gardner v Hansen & Yuncken Pty Ltd, 63/1996) but that is because certification is determinative of entitlement. A right or disentitlement provided for by the Act, s86 is conclusive, and any variation requires recourse to another part of the legislation; but s81A provides for referral. It requires the employer disputing liability to:

"(1)…

(c)serve the worker with written notice that the employer disputes   liability ¾

(i)to pay compensation by way of weekly payments and must inform the worker of the reasons for disputing liability; or

…

(d)refer the matter to the Tribunal."

1. Had the letter itself included information contained in the accompanying documents, the requirements of s81A(1)(c) would have been met. The letter makes specific reference to the accompanying document and the absence of physical attachment is irrelevant. The absence of a piece of information absent from the primary document, but otherwise known to the recipient, does not necessarily vitiate the notice (Tasmanian Government Insurance Board v Priest A57/1993, Griffiths v Devonport Youth Accommodation Services Inc, A39/1996).  The provision of that information in a document referred to in the notice and provided together with the primary document fulfils the requirement.  The document of referral delivered separately is to be read together with notification addressed to the respondent (Thornton v Terry Cox 60/1994).  The test is identification of the issue and notice of intended procedure of consequence (Hawkins v Mercury Walch Pty Ltd 22/1996). The documentation provided by the applicant complied with the requirements of the Act, s81A(1)(c).

1. The motion to review is upheld.  The order of the Commissioner is quashed and the referral is remitted to the Tribunal to be determined in accordance with law.