Jeffes v The State of Tasmania
[2004] TASSC 75
•27 July 2004
[2004] TASSC 75
CITATION: Jeffes v The State of Tasmania [2004] TASSC 75
PARTIES: JEFFES, Robyn Anne
v
STATE OF TASMANIA (THE )
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 16/2004
DELIVERED ON: 27 July 2004
DELIVERED AT: Hobart
HEARING DATES: 2 July 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Claim for compensation – Content of claim – Whether medical certificate can be treated as a claim for compensation - Meaning of "period specified" in medical certificate.
Workers Rehabilitation and Compensation Act1988 (Tas), ss69(13) and 81A.
Aust Dig Workers Compensation [297]
REPRESENTATION:
Counsel:
Appellant: L K Mackey
Respondent: T Foulds
Solicitors:
Appellant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 75
Number of Paragraphs: 30
Serial No 75/2004
File No LCA 16/2004
ROBYN ANNE JEFFES v THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
27 July 2004
In 1997, the appellant claimed to be entitled to compensation in accordance with the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The original certificate stated that the appellant's disease was "stress" and under the heading "What Happened", appears the enigmatic statement, "verbal harassment (ongoing)". The claim was not disputed and compensation was paid.
According to the reasons for judgment of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"):
"The employer's position was that the worker had been able to return to her pre-injury duties and that there was no substantive incapacity certified until a certificate dated the 14th November 2003 was provided to the employer which certified the worker as being totally incapacitated for work from the 14th November until the 4th December inclusive. This period of incapacity was alleged to have been caused by an unplanned contact with the individual who had been involved in the previous interpersonal conflict in the workplace, presumably the basis of the original claim for compensation."
By a notice dated 27 November 2003, the respondent (Department of Education) by its agent, treated the medical certificate dated 14 November 2003 as a claim for compensation and sought to refer the matter pursuant to the Act, s81A. In so doing, the respondent relied upon the Act, s69(13), which provides:
"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."
The appellant disputed that the certificate dated 14 November 2003 could be treated as a claim for compensation to which s81A applied. By her counsel, she argued that this certificate was not provided more than 14 days after the expiry of the period specified in the immediately preceding certificate.
The Tribunal held that the certificate could be treated as a claim for compensation. Thereupon, two medical certificates were tendered in evidence, one from the appellant's certifying general practitioner, and one from Dr Sale, consultant psychiatrist. The respondent submitted that the material showed that a genuine dispute existed as to whether there was sufficient evidence to substantiate that the injury arose out of and in the course of the appellant's employment and/or if it was a disease, that her employment contributed to it to a substantial degree.
The Tribunal found that a genuine dispute existed and ordered that no compensation or other benefits be paid. The appellant has brought this appeal against that order claiming that error attended the conclusion that the medical certificate of 14 November 2003 could be treated as a claim for compensation for the purposes of the Act, s81A.
From the medical reports, it appears that the appellant has suffered from psychiatric problems since 1997 as a result of interpersonal conflict with her supervisor. It seems that she managed to return to work after a period of time away and coped to some degree, provided there was no contact with her, by then former, supervisor. However, in July 2003, there was a brief encounter between the two of them at a professional development seminar and the appellant's mental health immediately worsened. There was a flare-up. Following the flare-up, her mental health settled somewhat and she was able to return to work and stay there until 14 November 2003. The medical reports tendered to the Tribunal describe the appellant as suffering from a major depressive episode from which she has not made a full recovery. She remains "disproportionately sensitive to any dealing with the other individual".
The medical certificate that is at the heart of this dispute is dated 14 November 2003 and states that the appellant will be incapacitated for work from 14 November to 4 December, inclusive. Prior to 14 November 2003, the appellant was at her work with the respondent. Notwithstanding her return to work, she appears to have been regularly consulting the certifying medical practitioner and he provided her with certificates, even though she did not claim any entitlement to weekly payments.
It is necessary to examine those certificates in order to determine whether the one dated 14 November 2003 meets the statutory criteria specified by the Act, s69(13).
Four medical certificates, plus the disputed one, were put before the Tribunal. They are not all dated, but Ms Mackey, who appeared as counsel for the appellant, advanced what appeared to me to be good reasons for fixing the chronology of certification. Mr Foulds, who appeared for the respondent, did not join issue over this chronology and I accept it.
The earliest certificate relates to the period that the appellant had off work in July 2003 following the brief encounter at the professional development seminar. That certificate certifies the appellant to be incapacitated for work from 28 July to 4 August 2003.
The next certificate states that the appellant will "cease to be incapacitated for work on 5 August". Under the heading, "Please detail permanent duty restrictions if any", the certifying practitioner has written "NO contact with the particular individual with whom there has been interpersonal conflict". The certificate is described as "continuing".
Next, there is a certificate that states that the appellant has not been incapacitated for work and is [sic] fit for pre-injury duties since 5 August. It also states that the appellant will cease to be incapacitated for work " ¾5 August". Under permanent duty restrictions, there is written, "NO contact with the particular individual with whom there has been interpersonal conflict". As before, this certificate is described as a continuing one.
Lastly, there is a certificate dated 3 November 2003. It certifies that the worker "has not been incapacitated for work" and is "fit for pre-injury duties" (no dated is specified). The certificate also states that the appellant will cease to be incapacitated for work on 5 August. Under permanent duty restrictions is written:
"NO contact with the particular individual with whom there has been interpersonal conflict. Safeguards undertaken by the employer to ensure this must be concisely documented. If not Robyn is at risk of becoming more incapacitated for work duties."
Again the certificate is described as a continuing one.
Turning to the Act, s69(13), the Tribunal held that, "the period specified" must refer to the period of incapacity specified in the certificate. That seems to me to be correct. Counsel did not contend to the contrary. The Tribunal went on to conclude that:
"It is not the fact of incapacity but rather the period of incapacity entered in the certificate by the doctor and representative of his opinion in that regard that is relevant. The expression of opinion by the doctor is not conclusive as to the fact of incapacity which may fall to be determined separately, the certificate's role is to support the existence of a claimed incapacity. Whether or not the worker is in fact incapacitated is not relevant, one must look at the certification of a period of incapacity in the prescribed certificate."
That too, seems to me to be correct and counsel did not contend to the contrary.
The Act, s69(13), has effect "where the worker provides a further medical certificate more than 14 days after the expiration of that specified period". There seemed to be no evidence of when the appellant provided the respondent with the medical certificate dated 14 November 2003, but it seems to have been assumed that it was on or shortly after that date.
For the respondent it was contended that the last period of incapacity for work expired on 5 August 2003. The respondent argued that that was the period specified in all the certificates prior to the one dated 14 November 2003 and therefore, the certificate dated 14 November 2003 must have been provided more than 14 days after the expiration of that specified period.
For the appellant it was contended that upon a fair reading of all the certificates, the repeated reference to "NO contact with the particular individual with whom there has been interpersonal conflict" clearly shows that although the appellant was back at work, she was nonetheless partially incapacitated for work. Particular reliance was placed upon the certificate dated 3 November 2003 that stated that the appellant was fit for work, stated that she would cease to be incapacitated for work on 5 August and also stated "NO contact with the particular individual with whom there has been interpersonal conflict. Safeguards undertaken by the employer to ensure this must be concisely documented. If not Robyn is at risk of becoming more incapacitated for work duties". Ms Mackey referred to Arnotts Snack Products Pty Ltd v Yacob (1984) 155 CLR 171, in particular, at 178, where the joint judgment said:
"It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work."
In Williams v Metropolitan Coal Company Limited (1948) 76 CLR 431, Starke J said, at 444:
"Compensation is not payable for the injury but for the loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury. The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury."
Of course, having regard to the extended provisions of the Tasmanian Act, those references to physical incapacity for work must include incapacity by reason of a disease.
Ms Mackey submitted that the certificates, read as a whole, clearly certified partial incapacity for work and the period of that incapacity was into the indefinite future or for life. The Tribunal was alert to this problem for it observed, at par5:
"It is difficult to understand how a person can cease to be incapacitated for work, or have no incapacity for work and yet be certified to have a permanent duty restriction."
The Tribunal went on to resolve the issue before it in the following way:
"Having considered the certificates in question in this case, and also the issue of a permanent duty restriction generally, I do not consider that such a restriction where there is no period of incapacity provided falls within the meaning or intent of s69(13) as it does not create a period of incapacity within the meaning of that section. In my view the terms 'period specified' and 'specified period' refer to a period of incapacity as certified in paragraph 7 of the prescribed medical certificate where the form accommodates the entering of a definite period of time. The Oxford Concise Dictionary indicates that a 'period' is a reference to a portion of time whereas 'specific' notes something definite or distinctly formulated. In Uniting Repairing Co Ltd – v – Brother [1945] NZLR 160, Myers CJ in a decision of the Full Court of the Supreme Court of New Zealand said at p 164;
'That expression "specified period" must mean, I think, that the period must be fixed, definite and certain'."
In so concluding, the Tribunal made a finding of fact that the period specified in the medical certificate expired, and more than 14 days after the expiration of that specified period, the appellant provided the respondent with a further certificate.
As originally drafted, the notice of appeal contained two grounds, namely:
"1 The Chief Commissioner erred in concluding that a medical certificate with a permanent duty restriction and providing no period of incapacity does not fall within the meaning or intent of section 69(13) of the Workers Rehabilitation and Compensation Act 1988.
2 The Chief Commissioner erred in concluding that there was a break in certification of more than 14 days within the meaning of section 69(13) thereby giving the Tribunal jurisdiction to determine a referral under section 81A."
At the hearing of the appeal, a third ground was added, viz:
"No Tribunal acting reasonably and properly instructed as to the law could have concluded that the period specified (within the meaning of section 69(13)) ended on the 5th of August 2003."
The appellant has not established that the Tribunal misdirected itself with respect to any question of law. It correctly identified the meaning of the expression "period specified in a medical certificate" and, accordingly, grounds 1 and 2 are not made out.
It seems to me that the construction of the medical certificates adopted by the Tribunal was one that was reasonably open. As the Tribunal noted, the certificates were contradictory. With respect to the issue of incapacity for work, only one finite period was specified, namely, the period ending on 5 August 2003. Observations were made in the certificates about restrictions in the workplace, but no period of time was attached to these observations. The observations were vague and uncertain and although they could be construed as meaning that the appellant was partially incapacitated for work, the Tribunal was entitled to rely upon the repeated unequivocal assertions in the medical certificates that incapacity for work will, and subsequently did, cease on 5 August 2003. The appeal will be dismissed.
This is an unusual case because a worker does not usually provide his or her employer with a s69 certificate unless its terms create an entitlement to weekly payments.
Section 69(13) is not confined to certificates which create an entitlement to weekly payments, although I suspect that the legislature had in mind such certificates when it inserted the subsection into the Act by Act No 99 of 2000. This would have perhaps been made clear had the subsection provided:
"If the period specified in a medical certificate provided by a worker under this section and which created an entitlement to a weekly payment or payments 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."
2
1