McKenzie v State of Tasmania

[2011] TASSC 42

[2011] TASSC 42

COURT:  SUPREME COURT OF TASMANIA

CITATION:              McKenzie v State of Tasmania [2011] TASSC 42

PARTIES:  McKENZIE, Phillip Roger
  v
  STATE OF TASMANIA

FILE NO/S:  268/2011
DECISION

APPEALED FROM:  Department of Education v M [2011] TASWCRT 14

DELIVERED ON:  12 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  27 July 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Claims for compensation – Content of claim – Whether a medical certificate that does not specify an incapacity for a specified period may be treated as a claim for compensation – Whether a previous medical certificate that did so specify may be regarded as a claim for compensation – Meaning of "period specified".

Workers Rehabilitation and Compensation Act 1988 (Tas), s69(13).
Jeffes v State of Tasmania [2004] TASSC 75, followed.
Aust Dig Workers Compensation [297]

REPRESENTATION:

Counsel:
             Appellant:  J Jovanovic
             Respondent:  A R McKee
Solicitors:
             Appellant:  J Jovanovic & Associates
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASSC 42
Number of paragraphs:  33

Serial No 42/2011
File No 268/2011

PHILLIP ROGER McKENZIE v STATE OF TASMANIA

REASONS FOR JUDGMENT  CRAWFORD CJ

12 August 2011

1. The issue to be determined concerns the effect of a medical certificate when considering the Workers Rehabilitation and Compensation Act 1988, s69(13), when the certificate does not certify an incapacity for a specified period, that is one that commences and ends on specific dates.

The course of the proceedings

1. The appellant was employed by the Education Department.  On about 7 June 2007 he submitted a claim for workers compensation, which he signed.  It stated that on 5 June 2007 he was lifting large lockers and pulling them forward over sandstone pavers when he strained his lower back and left hip.  The incident occurred at his workplace at New Town High School.  His claim form stated that his injury or condition was not solely due to the occurrence and that there were other causes of his condition. 

1. The Education Department submitted an employer's report dated 8 June 2007.  It described the appellant's occupation with the Education Department as an attendant at New Town High School.  It said that his claim was lodged on 8 June 2007, and that it was estimated he would be off work for more than two weeks but less than three months. 

1. The claim was supported by a standard form of workers compensation medical certificate of Dr Macrossan dated 6 June 2007.  It stated that the appellant was examined that day and his presenting symptoms were lumbar pain and left groin pain.  The diagnosis was a loosened left hip prosthesis.  The appellant had stated that the condition was caused in an incident on 5 June 2007 when he was pushing/pulling 350 kilogram lockers.  Dr Macrossan certified that the injury was consistent with the stated cause and was an aggravation of an existing condition.  The appellant's history was stated as including existing bilateral hip osteoarthritis.  He was certified to be unfit for work from 6 to 30 June 2007.  Dr Macrossan indicated on the certificate that he wished to review the appellant on 30 June 2007.  The certificate was described as an initial certificate, rather than a continuing or final/clearance certificate. 

1. Dr Macrossan completed a second medical certificate on 28 June 2007.  In many respects it was the same as the earlier one, certifying as to the same symptoms, diagnosis, cause and history.  He had examined the appellant that day. Importantly for the circumstances of this case, on the standard form he certified that the appellant was "fit to return to modified duties from 28/6/07 to indefinite".  The suggested modifications to duties were stated to be that he must not lift greater than two kilograms and "light duties".  Dr Macrossan stated that he wished to review the appellant on 12 July 2007, that he had referred him to other health professionals, and that professional rehabilitation services with "Total Outcome" were required. The certificate was described as a final/clearance certificate, rather than an initial or continuing one.

1. In a letter of the same date, 28 June 2007, to the insurer, Dr Macrossan gave far greater clarity to the appellant's problems.  He explained that the condition was an exacerbation of existing chronic relentless hip and back pain which had been investigated and treated by several specialists, including Hilton Francis and John Mills, and also the pain clinic at the Royal Hobart Hospital.  Earlier in 2007 both Dr Francis and Mr Mills had said to the appellant that he would have to give up work because his shoulders and hips were too severely disabled with osteoarthritis to continue working as a cleaner, or in any other heavy manual labour work.

1. In that letter, Dr Macrossan also referred to his certificate of the same date.  He said that he had written on it that he believed the injury to be an aggravation of the appellant's pre-existing osteoarthritis, and that the appellant agreed with that.  The injury had aggravated a non-work-related chronic inflammatory condition.  The letter continued: "It will be difficult to tell if this aggravation will ever cease as his underlying severe osteoarthritis is permanent and chronic pain is an everyday factor for him.  I think though that at review today he is somewhat more comfortable than he was the week of the injury".  The appellant was to continue to see Dr Francis and Mr Mills and the Pain Management Unit.  A case management meeting had been held that morning with Total Outcome and it had been agreed that he could return to light duties on a permanent basis at New Town High, where he would be on a two kilogram weight lifting restriction and perform duties such as dusting and tidying. 

1. I was informed from the bar table by the appellant's counsel that workers compensation was initially paid to the appellant but stopped on 30 June 2007.  Thereafter, compensation was not paid.  Counsel said that he did not work again, apart from a few weeks.  Following that he was paid retirement benefits.

1. On 10 November 2010, a certificate was issued by Dr Ostberg.  It was on a WorkCover form, the printed section of which described it as an initial workers compensation medical certificate.  It stated that it was to be completed for initial consultations and that, if it was not the patient's first consultation, a continuing/final workers compensation medical certificate had to be completed. 

1. Dr Ostberg certified that he had examined the appellant that day.  The appellant had presented with chronic severe pain and the final diagnosis was spondylolisthesis, facet joint degeneration and prolapsed invertebral discs.  He was awaiting surgery.  It was certified that he had stated the condition to be caused by an incident on 6 June 2007 when he was lifting/pushing 350 kilogram school lockers.  It was said that the injury or disease was consistent with the stated cause.  It was certified that he would be incapacitated for any work from 28 September 2010 until 28 May 2011 because surgery was scheduled in January 2011, following which at least four months of rehabilitation would be required. 

1. On 25 January 2011, a physician, Dr Stevenson, reported to the insurer that he could not conclude that the appellant's current condition was due to the work incident on 5 June 2007, and that in his opinion the current condition would probably be the same without that incident.  Dr Stevenson's prognosis was constitutional issues, not work injury.  He described the appellant as suffering non-specific back pain in a background of arthritis in the spine, and left hip and rotator cuff degenerative pathology. It was noted that the appellant had suffered spondylolisthesis for many years but Dr Stevenson was doubtful that the ongoing back pain stemmed from it.

1. The employer wished to dispute liability to pay compensation and it purported to treat the medical certificate of Dr Ostberg dated 10 November 2010 as a claim for compensation to which s81A applied. It maintained that it was entitled to do so under s69(13). Under s81A(1), it served the appellant with written notice that it disputed liability, informed him of its reasons, and referred the matter to the tribunal.

1. Its reasons for disputing liability to pay compensation were stated to be that the appellant's incapacity was no longer due, wholly or substantially, to any injury arising out of or in the course of the employment; he had recovered from any injury arising out of and in the course of the employment; and any incapacity and symptoms suffered by him did not result from any injury arising out of or in the course of his employment.

1. The referral came on for hearing before the tribunal.  It was submitted for the employer that a reasonably arguable case existed concerning the liability of the employer to pay compensation.  If the tribunal was satisfied of that, the usual consequence would be that the tribunal would order under s81A(3)(c) and (d) that weekly compensation was not to be paid by the employer, and the cost of any benefits under PtVI, Div2, in respect of the injury was not to be paid either.  What would then have followed was that the question of liability would have to be determined at a fully contested hearing. 

1. The tribunal agreed with what the employer wished to do.  Under s81A(3)(c) and (d), it considered that a reasonably arguable case existed concerning the liability of the employer to pay compensation, and it determined that compensation was not to be paid. The effect of that determination is that compensation is not to be paid until the dispute has been fully argued before the tribunal. 

The appeal

1. It was submitted for the appellant to the tribunal that the employer had no right under s69(13) to treat the certificate of Dr Ostberg as a claim for compensation and therefore, no right to refer it the tribunal under s81A(1). They are the questions that are the subject of the appeal to this Court.

1. Section 69 provides for the amount of weekly compensation to be paid in the case of incapacity for work resulting from an injury suffered by a worker.  In subs(1), it requires for an entitlement that the existence of an incapacity, whether total or partial, must be supported by a medical certificate in a form approved by the WorkCover Tasmania Board and signed by a medical practitioner or accredited person. 

1. Subsection (13) is in these terms:

"(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. What is plainly intended by the subsection is that if a worker can support a claim to weekly compensation for an incapacity for a particular period of time with a medical certificate certifying that incapacity for that period, and the claim has been accepted or payments have commenced, the employer cannot refer the claim to the tribunal under s81A upon receipt of a further medical report unless there is a gap of more than 14 days between the expiration of the last period of incapacity that was specified in an earlier certificate, and the receipt by the employer of the further certificate. 

1. The reason for the subsection is obvious.  A worker might not seek a continuation of payments of compensation by not providing the employer with a medical certificate for a considerable period of time, perhaps one counted in years.  It would be unfair to an employer to be faced with a retrospective claim to payments covering such a long period of time and involving a considerable amount of money, without there being a right to dispute liability and refer the matter to the tribunal under s81A. 

1. The problem in this case arises out of Dr Macrossan's second certificate, the one dated 28 June 2007.  It does not certify a period of incapacity for a specified period.  Arguably, at its highest, it certifies that there will be incapacity from 28 June 2007 indefinitely, possibly for a very long period of time indeed.  Because of its terms, the tribunal found that it did not certify incapacity for a "period specified" within the meaning of that term as it is used in subs(13).  The tribunal applied a statement in United Repairing Co Ltd v Brother [1945] NZLR 160 at 164 that the expression "specified period" means a period that is fixed, definite and certain. The tribunal had previously applied that meaning in Department of Education v J [2004] TASWRCT 18 and Myer Stores Ltd v B [2004] TASWRCT 21.  Such a meaning was accepted by Underwood J (as he then was) in Jeffes v State of Tasmania [2004] TASSC 75 at par[28]. The appellant's counsel did not argue against it at the hearing of this appeal.

1. For that reason, the tribunal concluded that Dr Macrossan's certificate of 28 June 2007 could not be used when determining whether Dr Ostberg's certificate could be treated by the employer under s69(13) as a claim for compensation to which s81A applied. The appellant's counsel accepted that as a correct legal statement.

1. The tribunal then concluded that the employer was entitled to rely on Dr Macrossan's first certificate, the last and only one to have specified a period of incapacity and to have been received by the employer prior to the receipt of Dr Ostberg's certificate.  What the tribunal said was:

"12Should this outcome deny the employer the option of utilising s69(13) in circumstances where there has been an interval in excess of 3 years between the employer's receipt of Dr Macrossan's second certificate and its receipt of Dr Ostberg's certificate and where such an outcome would defeat the clear intention of the Act? In my view the appropriate course in a circumstance such as this is to turn to Dr Macrossan's previous certificate. It incorporates a specified period of incapacity, that is a period beginning on 6 June and ending on 30 June 2007, the latter date I note falling within that period of 'indefinite' incapacity as certified by Dr Macrossan in his subsequent certificate. This leads me to determine, for the purposes of s69(13), that the specified period of the worker's incapacity expired on 30 June 2007. It is apparent on the evidence that Dr Ostberg's certificate was received by the employer on 10 November 2011, that is far more than 14 days beyond 30 June 2007. These findings lead me to conclude that the employer may, pursuant to s69(13) treat Dr Ostberg's certificate as a claim for compensation to which s81A applies and I determine accordingly."

1. There are several grounds of appeal, all of which attack what was stated by the tribunal in that passage.  It was submitted that it was erroneous to use Dr Macrossan's first medical certificate in that way, and that it was erroneous to think that the clear intention of the Act would be defeated if it was not used.  Counsel argued that the first certificate could no longer be relied upon by the employer once the certificate of 28 June 2007 had been issued.  It was further submitted that as the latter certificate did not contain "a specified period" of incapacity, the employer was unable to use it as the basis for a referral to the tribunal under s81A when the certificate of Dr Ostberg dated 10 November 2010 was received.  It was argued that the certificate of 28 June 2007 was still a current one at that time because it certified an indefinite period of incapacity. 

1. At first instance in Jeffes v State of Tasmania (Department of Education v J) the tribunal had to deal with the following facts. A worker's claim for compensation was supported by a medical certificate that there was a period of incapacity for work from 28 July to 4 August 2003. Beyond doubt the certificate contained a specified period of incapacity. It was followed later in 2003 by three further certificates which, although stating that the worker would cease or had ceased to be incapacitated for work on 5 August 2003, required that she had no contact at work with a particular individual. Her injury or disease had been a psychiatric one. It was apparent that if she had contact with the individual she was at risk of becoming more incapacitated for work. Each of those three certificates described itself as a continuing one. The worker presented a fifth medical certificate dated 14 November 2003 that certified total incapacity from that date to 4 December 2003. The employer sought to treat that certificate under s69(13) as a claim for compensation and to refer the claim to the tribunal under s81A.

1. For the worker it was submitted that the requirement that she have no contact with a particular individual demonstrated that although she had returned to work, she was nevertheless partially incapacitated for work, and the three medical certificates, read as a whole, clearly certified partial incapacity for work for a period that was indefinite or for life.  The tribunal seemed to find merit in that when it said: "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."

1. Nevertheless, the tribunal in Jeffes concluded that the three certificates did not contain a "period specified" as that term is used in s69(13). The tribunal then referred to the first certificate, one that did certify an incapacity for a fixed period from 28 July to 4 August 2003 and determined that it was a "period specified" within the subsection. The tribunal concluded that as more than 14 days had passed from the end of that period to the date of the certificate of 14 November, the employer was entitled by s69(13) to treat the last certificate as a claim for compensation and to refer it to the tribunal under s81A.

1. In Jeffes v State of Tasmania Underwood J upheld the tribunal's decision.  His Honour held that the tribunal had not misdirected itself with respect to any question of law.  That finding was made in the context of s63(1), which only permits an appeal to the Court in point of law.

1. Judicial comity and the desirability of uniformity in the construction of statutes requires me to follow what Underwood J held unless convinced that it was clearly wrong.  Peck v Attorney-General [1956] Tas SR 88 at 90; Swetnam Brothers Pty Ltd v Grundy [1997] TASSC 17 at par[16]. I am not convinced that the decision of his Honour was wrong.

1. Counsel for the appellant submitted that Jeffes v State of Tasmania is distinguishable because the three medical certificates did not certify as to an incapacity.  I do not think that is a basis for distinguishing it.  As Underwood J observed at par[23], the tribunal was alert to the problem.  It made a finding of fact that the certificates did not speak to a "specified period" of incapacity.  That is the case here so far as concerns Dr Macrossan's certificate of 28 June 2007.

1. The result of this case conforms with the apparent intention of s69(13) that if a worker ceases to receive compensation, and medical certificates are not submitted until more than 14 days have expired since the expiration of the last specified period of incapacity to have been certified, then a claim for renewal of the payments of compensation may be referred by the employer to the tribunal.

1. The appellant is not without remedy. He may have the tribunal determine his right to compensation. What he is unable to do is to prevent the employer from referring the matter to the tribunal and from avoiding the payment of compensation in the meantime until the tribunal makes a determination following a full hearing of the appellant's rights on the merits.

1. The appeal will be dismissed.