Holden Ltd v Creek No. Scciv-01-1085

HOLDEN v CREEK
[2003] SASC 402
Full Court: Doyle CJ, Prior and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Gray J. There is nothing that I wish to add to those reasons.
PRIOR J: I agree with Justice Gray. The appeal should be dismissed.
GRAY J:
Introduction
This is an appeal pursuant to leave from a decision of a judge of this court. The judge allowed an appeal from a magistrate and set aside four convictions for offences against section 120(1)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA). Holden Limited, the appellant, sought to have the orders of the learned magistrate restored.
Section 120 provides:
(1) A person who—
(a)     obtains by dishonest means a payment or other benefit under this Act; or
(b)     dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c)     dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading; or
(d)     dishonestly makes an application, or gives a return, under this Act knowing the application or return to be false or misleading,
is guilty of an offence.
Penalty:    $50 000 or imprisonment for one year.
The Proceedings
On 2 December 1998 summary proceedings were issued in the Adelaide Magistrates Court. The complaint alleged seven counts of breaches of section 120(1)(b) of the Act.
Reginald Arthur Creek pleaded not guilty. Following the trial the magistrate convicted Mr Creek on counts 2, 3, 6 and 7. Count 1 was abandoned and counts 4 and 5 were dismissed as alternate counts. As earlier observed a judge of this court allowed an appeal and the four convictions were set aside.
On appeal to this court counsel for Holden did not pursue count 7 and accepted that the evidence did not support a finding on count 6. In these circumstances only counts 2 and 3 remain for consideration.
Count 2 alleged:
STATEMENT OF OFFENCE
On or about the 7 October 1997 [Reginald Arthur Creek] dishonestly claimed to be entitled to a payment under the Workers Rehabilitation and Compensation Act, 1986 contrary to section 120(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.
Further Particulars [supplied later]
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 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.
Count 3 alleged:
STATEMENT OF OFFENCE
On or about 3 November 1997 [Reginald Arthur Creek] dishonestly claimed to be entitled to a payment under the Workers Rehabilitation and Compensation Act, 1986 contrary to section 120(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 1 November 1997 to 12 November 1997 inclusive whereas he well knew that the effects of such injury, if any, did not incapacitate him for such duties.
Further Particulars [supplied later]
On about 29 October 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 undated in which he stated words to the effect that the defendant would be totally incapacitated for work at Holden for the period from 1 November 1997 to 12 November 1997.
On about 3 November 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.
The judge of this court took the view that there was no evidence that a claim had been made by Mr Creek for weekly maintenance payments and that the convictions should be set aside. If no claim was advanced it was not possible for there to be a breach of section 120. The judge rejected the submission that the medical certificates provided by Mr Creek to Holden amounted to the making of a claim for income maintenance. The judge also took the view that there was inadequate evidence that Mr Creek acted dishonestly and that there were other gaps in the prosecution case. Counsel for Holden specifically challenged the findings that there was no evidence of a claim and the suggested lack of evidence of dishonesty
The Facts
Reginald Arthur Creek, the respondent, suffered a spinal injury in the course of his then employment. In 1984 he underwent a spinal fusion operation of the lower lumbar spine. He returned to work. In January 1995 he obtained employment with the appellant, Holden. He worked as a spot welder on unrestricted duties. At times the work was heavy.
On 5 November 1996 he was moving a die into position with the use of a crowbar. The crowbar slipped. He jarred his back. He experienced lower back pain and requested other workmen to finish the job. He continued working for about 10 days. On 14 November 1996 he consulted his general practitioner Dr Chen. Examination disclosed tenderness over the lower lumber spine at the site of the fusion. He was prescribed medication and referred to a physiotherapist.
On 14 November 1996 Mr Creek gave notice of a work related injury and made a claim for workers compensation including income maintenance. He said he sustained a lower back strain. Holden provided a form for this purpose. The particulars provided were recorded in triplicate. One copy became the notice of a work related injury. Another copy formed Mr Creek’s claim for workers compensation.
On 18 November 1996 Holden gave notice that it was deferring its determination of Mr Creek’s claim pending the receipt of medical reports and further investigation. Mr Creek then made an application for interim payments pursuant to section 106 of the Act[1]. On 19 November 1996 Holden approved interim payments pursuant to section 106. On 26 November 1996 the Holden file was referred to its rehabilitation officer Kevin Prunty.
[1] Section 106 provides: (1) The Corporation may, pending the final determination of a claim, make interim payments of compensation to a claimant.
Dr Chen was further consulted by Mr Creek on 21 and 28 November 1996. On 3 December 1996 Dr Chen referred Mr Creek to an orthopaedic specialist Mr Fry. Mr Fry saw Mr Creek on 5 December 1996. Dr Fry considered that Mr Creek had aggravated his pre-existing back condition. He considered that the problem would settle.
In early December 1996 Mr Prunty outlined to Mr Creek Holden’s role in rehabilitation and on 9 December 1996 a rehabilitation program was signed.
Mr Creek consulted Dr Chen in February and March 1997. Medical certificates were completed by Dr Chen and then provided by Mr Creek to Holden. In April 1997 Holden referred Mr Creek to a neurosurgeon Mr Harold Schaeffer. He considered that Mr Creek had suffered a temporary aggravation of his pre-existing back condition and that he should return to light duties. Mr Prunty had concerns about Mr Creek returning to work as he feared a further aggravation of a pre-existing injury.
On 19 May 1997 Holden terminated the weekly maintenance payments and on 23 May 1997 accepted Mr Creek’s claim for weekly maintenance payments for a period from 15 November 1996 to 5 February 1997. This acceptance was apparently based on Mr Schaeffer’s opinion even though he viewed Mr Creek as fit “only for light duties”. On 26 May 1997 Mr Creek lodged a Notice of Dispute. The effect of this was to claim a continuing entitlement. On 20 June 1997 Holden confirmed the existence of a disputed decision.
Dr Chen was consulted by Mr Creek in April, May, June, July and August 1997. Dr Chen referred Mr Creek to Mr Osti, an orthopaedic surgeon who examined Mr Creek on 1 August 1997. An MRI scan was undertaken on 8 August 1997 and a discography performed on 14 August 1997. Dr Osti considered that Mr Creek was fit for light duties but was unfit for repetitive work or work requiring heavy lifting. This accorded with the opinion of Dr Fry.
On 28 August 1997 a conciliation conference was held at the Workers Compensation Tribunal. The matter could not be resolved. Prior to 28 August 1997 Mr Prunty had informed Mr Creek that there were no light duties available at Holden. No return to work program was put in place.
On 1 September 1997 Mr Osti confirmed that Mr Creek was fit for light duties. On 2 September 1997 Holden was advised by its solicitor that the only possible basis of successfully defending the claim for continuing payments after 5 February 1997, was to make an offer of suitable light duties. On 3 September 1997 Mr Schaeffer confirmed that Mr Creek was fit for light duties. In early September 1997, Ms Compton the coordinator of claims and prosecutions officer at Holden spoke to Mr Creek’s former superior Mr Keighnan about light duties. On 1 October 1997 Holden informed Mr Creek by telephone that light inspection duties would be made available. However no details of the proposed work duties were provided.
On 24 September 1997 Dr Chen was consulted by Mr Creek. He provided him with a certificate of unfitness including the following:
CAPACITY FOR WORK
a result of this discussion regarding suitable duties AND/OR based on my knowledge of the worker’s capacity and duties, consider that the worker:
if modifications to duties are minimal, please indicate below.
OTHERWISE, please complete the SPECIFIED DUTIES FORM
has not been incapacitated for work and is fit for pre-injury duties
ceased to be incapacitated for work from
is fit to return to modified duties from               to
a    will be incapacitated for work from    28/9/97     to     31/10/97
I will reassess this worker:      Yes    on                   or    No
Expected total time off work from the date of this examination:                working days
I have referred the worker to     (eg. Surgeon, OT, physioetc):   Yes    Name:       or No
Are professional rehabilitation services required for the purposes of return to work?
Yes   No
On 7 October 1997 Mr Creek provided the certificate to Holden.
On 29 October 1997 Dr Chen was further consulted by Mr Creek and provided a further certificate in identical terms. On 3 November 1997 Mr Creek provided the certificate to Holden.
Mr Creek continued to consult Dr Chen and present certificates to Holden. From September 1997 Holden engaged in extensive surveillance of Mr Creek. Holden dismissed Mr Creek from their employment in March 1998.
Consideration of the Issues
The Claim
Section 52 of the Act regulates the making of claims. It provides:
(1) Subject to this section, a claim for compensation—
(a)     must be made in a manner and form approved by the Corporation; and
(b)     must be made within the prescribed period; and
(c)     must be supported by a certificate in the prescribed form by a recognised medical expert certifying—
(i)    the nature of the disability;
(ii)     the probable cause of the disability so far as that is ascertainable by the medical expert;
(iii)    where the claimant claims to be incapacitated for work—the extent and probable duration of the incapacity;
(iv)    whether the medical expert has personal knowledge of the worker's workplace and, if so, the extent of that knowledge and whether the medical expert has discussed with the employer the kinds of work that might be appropriate for the worker in view of the disability.
(2) Where notice of a disability is required under this Division, 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.
(3) Notwithstanding subsections (1) and (2)—
(a)     the absence of, or a defect in, a notice of disability is not a bar to the making of a claim if—
(i)    the proper determination of the claim has not been substantially prejudiced; or
(ii)     the failure to give the notice, or the defect in the notice, was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause; and
(b)     a failure to make a claim within the prescribed period is not a bar to the making of a claim if—
(i)    the proper determination of the claim has not been substantially prejudiced; or
(ii)     the failure to make the claim within the prescribed period was occasioned by ignorance of the claimant, mistake or absence from the State, or other reasonable cause.
On appeal there was no dispute that Mr Creek had made a claim on 14 November 1996 for workers compensation including weekly payments. Although the claim form was not in evidence, it was accepted that a claim had been lodged. Documents in evidence referred to that claim. Holden paid interim weekly maintenance payments for more than six months. The claim for workers compensation came to be disputed. A conciliation conference conducted by the Workers Compensation Tribunal failed to resolve the dispute and the claim was referred for hearing by the Tribunal. These proceedings have been held in abeyance pending the resolution of the prosecution proceedings.
Counsel for Mr Creek submitted that the medical certificates provided by Dr Chen to Mr Creek and then presented to Holden were no more than evidence supporting the claim. Attention was drawn to the particulars provided to support counts 2 and 3 and to the allegation that the provision of the specified medical certificate amounted to the making of a claim for income maintenance. In these circumstances it was contended that although the provision of certificates might support a prosecution pursuant to section 120(1)(c) of the Act, they did not in the circumstances support a complaint alleging a breach of section 120 (1)(b).
Counsel for Holden accepted that the only statutory provision capable of requiring a medical certificate in the circumstances was section 52(2). It was accepted that the certificates prepared by Dr Chen were not required by the Act. Counsel also accepted that Holden had required its employees to provide medical certificates in a document entitled “Your Guide to Compensation and Rehabilitation”. A section of that document provided:
MEDICAL CERTIFICATES
Where a work-related injury or illness results in loss of time from work and/or medical or other expenses, a prescribed Workers Compensation Medical Certificate must be completed by your doctor and presented at the time of making a claim.
You must make sure that your doctor provides and correctly completes the appropriate certificate to avoid difficulties and delays.
You are required to provide a Workers Compensation Medical Certificate for any period(s) of time away from work as a result of your work-related injury or illness. Failure to do so may result in delays in your income maintenance. You are also required to provide a Workers Compensation Certificate from your doctor when you are fit to return to work.
This concession and the terms of the guide support the conclusion that the certificates prepared by Dr Chen and presented by Mr Creek to Holden were no more than the provision of evidence to support a claim of an injury and to explain absence from work. The certificates did not represent a claim for income maintenance in the sense in which this expression is used in section 120(1)(b). Mr Creek’s evidence supported this view. He said that he provided the certificates because Holden required them. Although Mr Creek acknowledged the importance of the certificates containing accurate information he did not accept that by providing the certificates to Holden he was making a claim for income maintenance. He made his claim on 14 November 1996 on the form provided. The claim was ongoing.
This submission should be accepted. Section 52(2) identifies the obligation to provide a medical certificate to support the claim referred to in section 52(1). For this reason the judge was correct to allow the appeal in respect of counts 2 and 3 and to set aside the convictions. Although the judge was incorrect in concluding that there had been no evidence that a claim had been advanced that is not to the point. The judge was correct to conclude:
… 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 , or for that matter, any other benefit under the Act.
The presentation of the certificates to Holden was not a “claim to be entitled to a payment”. The certificates were presented, at best, in support of a claim to income maintenance after February 1997, that claim arising from the Notice of Dispute. The presentation of the certificates had no particular significance under the Act.
The Extent of Disability
Earlier in these reasons the relevant portions of the medical certificates said to support counts 2 and 3 have been set out. Count 2 refers to the certificate dated 24 September 1997. Count 3 refers to the certificate undated but provided by Dr Chen on 29 October 1997.
Dr Chen’s evidence was led at trial by the prosecution. He was not questioned about whether he was expressing a view that Mr Creek was totally incapacitated for work. Dr Chen had received reports from Dr Fry, Dr Schaeffer and Dr Osti expressing the view that Mr Creek was fit for light duties. Dr Chen explained that he made enquiries of Holden as to whether light duties were available. This evidence confirms that Dr Chen considered Mr Creek fit for light duties and that by his medical certificates he did not assert total incapacity for work. Neither certificate contained the assertion that Mr Creek was totally incapacitated for work.
Dishonest Intent
Mr Creek gave evidence in his defence. He was not cross examined as to whether he understood the certificates to refer to a total incapacity. This was a central issue in the prosecution case. The particulars alleged that Mr Creek claimed to be totally incapacitated for work.
Mr Creek maintained that he was fit for appropriate light duties and keen to return to work. The medical evidence strongly suggested that he was fit only for light duties and if this were so, the obligation was on Holden to provide appropriate work. Holden did not suggest that any such position was available until October 1997. In that respect the magistrate concluded:
It is also true that the actual duties involved were never explained to Mr Creek but one would have thought once the offer having been made to him, he would have asked for some details of the duties or offered to attend Holden to discuss the duties. It is true also, GMH did not fulfil the obligations under the Act regarding meaningful consultation with him and his doctor about returning to work but this did not occur because of the defendant’s presentation to Dr Chen and as a consequence, Dr Chen’s certificates the defendant was not fit for any type of work. It must be remembered the prosecution case was that Mr Creek was fit for alternative or light duties only.
The prosecution did not exclude as a reasonable possibility the hypothesis that the medical certificates did not certify Mr Creek to be totally unfit for work nor had the prosecution excluded as a reasonable possibility the hypothesis that Mr Creek when providing the certificates to Holden understood that he was not presenting certificates asserting that he was totally incapacitated for work. The judge was correct to conclude:
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”.
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.

To establish guilt, Holden had to prove that the claim made by Mr Creek was false. It was arguable that the failure of Holden to offer light work entitled Mr Creek to payment under the Act. As earlier observed it was not proved that the certificate amounted in the circumstances to an assertion of total incapacity. Mr Creek may have made false statements to Dr Chen and to Holden about his incapacity but the charges were premised on the certificates amounting to an assertion of total incapacity. It was not proved that the certificate was an assertion of total incapacity.
To establish guilt Holden had to further prove that Mr Creek acted dishonestly. In these circumstances it was not proved that Mr Creek acted dishonestly in the sense of intending or expecting any gain from the presentation of the certificate.
Count 5
It was suggested that count 5 dismissed by the magistrate could be made the subject of this appeal. It was said that count 5 was only dismissed as an alternate charge to count 6 and that in the circumstances leave should be given to allow the count to be re-opened. This is not an appropriate course. The complaint in respect of count 5 was dismissed almost two years ago. No notice of the application to re-open count 5 had been given prior to this hearing. In view of the earlier reasons there is no prospect of an appeal succeeding. It is not appropriate to re-open the dismissal of count 5.
Conclusion
Counts 2 and 3 should have been dismissed by the magistrate. As earlier observed the appeal against the dismissal of counts 6 and 7 has been abandoned. The judge was correct to allow the appeal and set aside the convictions.
This appeal should be dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 Section 106 provides:
(1) The Corporation may, pending the final determination of a claim, make interim payments of compensation to a claimant.
(2) Where on the final determination of a claim it appears that an amount to which the claimant was not entitled has been paid under this section, the Corporation may recover that amount as a debt.

(2) Where on the final determination of a claim it appears that an amount to which the claimant was not entitled has been paid under this section, the Corporation may recover that amount as a debt.

[2003] SASC 402

5 December 2003