Monroe Australia Pty Ltd v Stanislaw Laszczak No. SCGRG 93/1075 Judgment No. 4278 Number of Pages 9 Workers' Compensation

[1993] SASC 4278

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Workers' compensation - for what injuries compensation is payable - Worker suffered aggravation of pre-existing sinus condition, continuing problems from a neck injury and depression - refusal by employer to pay compensation - worker lodge review application as to the sinus and neck problem but application did not refer to worker's 'depression' - depression and stress was noted in medical reports of the worker relevant to the application - review officer at the protest of counsel for the employer broadened the scope of the proceedinqs - to be able to take into account psychological condition of the worker arising out of his employment - review officer ordered that compensation be paid to the worker - decision upheld by Workers Compensation Appeal Tribunal - on appeal - whether the review officer could take the worker's psycholoqical condition into account in awarding him compensation. Held: review officer under the Act considered the medical reports and certificates made in relation to the worker's claim as was his duty - there was no broadening of the issues to be considered by the review officer - psychological and medical reports were properly considered in the review officer arriving at his decision.
Workers Rehabilitation and Compensation Act 1986ss.3, 30, 88 and 96. Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45, applied. James v The Workers Rehabilitation and Compensation Corporation
(1991) 56 SASR 414; WorkCover v James (1992) 57 SASR 365 and Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203, distinguished.

HRNG ADELAIDE, 5 November 1993 #DATE 26:11:1993
Counsel for appellant:     Mr D J Bleby QC
   with Mr M A Frayne
Solicitors for appellant:    Finlaysons
Counsel for respondent:     Mr G A Britton
Solicitors for respondent: David H Wilson

ORDER
Appeal dismissed.

JUDGE1 LEGOE J This is an exempt employer's appeal by leave from the Workers Compensation Appeal Tribunal. The appeal is confined by s.100 of the WorkersRehabilitation and Compensation Act to a question of law. That question has been formulated by senior counsel for the appellant, Mr D. Bleby QC. Although his formulation did not dovetail easily into the grounds of appeal, he articulated the question as follows: "Whether, as a matter of law, the review officer and the Workers Compensation Appeal Tribunal were entitled to order payment of compensation by way of income maintenance for incapacity arising out of one disability, when the decision of the employer the subject of review related to a different alleged disability". 2. Senior counsel candidly conceded that this discrete question had not been argued before the Appeal Tribunal. Indeed it had been conceded by counsel for the employer before the Review Officer that the issues could be broadened at the review hearing to include evidence of the worker's physical and mental disabilities (if there be any evidence of either). Counsel foreshadowed submissions which would be put to the effect that (a) the question could still be argued on appeal to this court, and (b) the concession made before the review officer was wrong and therefore should be corrected by this court as a matter of law. The background facts - how the point arises. 2 The respondent (worker) had been employed by the appellant for a number of years prior to the claim for compensation which is the subject of this appeal. The respondent had a history of work-related injuries which can be summarised as:
    1984 A skin disorder (eczema) of hands.
    1985 Two (2) further outbreaks of eczema.
    1987 Commencement of industrial dermatitis.
    22/7/87 Injury sustained over the right eye. Cervical
    tenderness and mild whiplash injury noted by general
    practitioner Dr Kreminski.
    19/4/88 Motor vehicle accident on the way to work, involving a
    young boy. Dr Kreminski recorded neck strain and "anxiety".
    The worker's claim for compensation was accepted by the
    appellant. The worker returned to work in early May 1988.
    19/10/88 Dr Kreminski issued a certificate that the worker was
    suffering from nasal polyposis and rhinitis. Dr Kreminski
    referred him to a specialist ear, nose and throat surgeon, Dr
    Edward Marzec, who considered it was appropriate that the worker
    "does not continue in an environment that aggravates his
    condition". He was to have an operation on his nose, but a
    report to the appellant dated 6 March 1989 by another ENT
    surgeon, Dr David M. Matison, thought that surgery "is
    indicated". The worker had the surgery at some stage and
    returned to work in the "sintering department" sometime in April
    to May 1989.
    5/5/1989 Dr Kreminski issued further certificates for the
    worker's unfitness to work which was caused by "exposure to oils
    and heavy repeated lifting - as a result of industrial
    dermatitis and back strain" on 5, 12 and 18 May 1989.
    26/5/1989 The appellant by written notice rejected the
    respondent's claim for compensation, dated 8 May 1989.
    20/6/1989 Dr J.N. Burry, skin specialist wrote a report
    addressed to the appellant.
    23/6/1989 Dr Edmund Scanlon, psychiatrist, wrote a lengthy and
    detailed report. He said in effect that although there were no
    obvious signs of depression "he has likely been suffering from
    some obsessional compulsive anxiety feelings, and probably an
    agitated type depression. ... I also have no doubt that this
    industrial dermatitis and loss of previous work status etc,
    would have been another factor in the loading that this
    vulnerable man had around him".
    24/6/1989 Dr Kreminski signed a further certificate stating
    the worker would be unfit for work until 29 June and would be
    fit for alternative duties with the following limitations:
    "Please put him back to work in the packing department and give
    him a fair go".
    11/7/1989 The appellant issued a notice of acceptance of the
    claim for compensation on the basis that "your period of
    incapacity relates to industrial dermatitis, but not to any back
    or shoulder injury or any psychiatric problems ".
    30/8/89 The worker was examined by Mr Adrian Munyard, surgeon
    (report to appellant dated 1/9/1989).
    28/9/1989 A rehabilitation co-ordinator reported to the
    appellant relating to neck pain complaints made by the worker. 3. On 10 April 1990, the worker lodged his compensation claim which is the subject of the question before this court. The subject claim In his claim dated 11 April 1990, the worker declared that:
    1. On 28 March 1990 at 7 p.m. he was in the packing
    department when he suffered an injury.
    2. He said he suffered "neck pain, nose, throat and ear pains".
    3. In the form where it states - "What happened?" the worker
    declared "Rhinitis aggravated from fumes and dust. neck
    pains from past injury at work". 4. Dr Kreminski issued medical certificates stating that on 29 March 1990 the worker was suffering from "neck, arm pain and rhinitis" which the worker claimed was caused by "exposure to dust and fumes over the last few months". On 5 and 23 April and 7 May 1990, Dr Kreminski issued certificates in similar terms. 5. On 27 July 1990 Dr Kreminski issued a further medical certificate in which he diagnosed "rhinitis, allergies, neck pains, depression". 6. On 8 August 1990 the appellant wrote to the worker enclosing a notice of rejection of his claim on the grounds that:
    "Your disability has not arisen out of your employment
    with Monroe Australia Pty Ltd. Your disability has not been
    caused or aggravated by the work environment as per Mr J Tomich's
    report (copy sent to you on 2/8/90). Any neck and arm pain
    which you may be experiencing does not incapacitate you for
    your duties in the packing department, which remain available
    and on offer to you." 7. On 22 August 1990 the worker lodged his application for review wherein he expressly raised the issue that "my sinus disability has been aggravated by the work environment and is a recurrence of a previous condition that was accepted by Monroe. For the past three years I have had constant problems with my neck following an accident at Monroe". 8. Further certificates on 12 September 1990 and 10 November 1990 stated "neck pains and depression and industrial allergy" or similar conditions including at each time "depression". 9. On 28 February 1991 the worker and the appellant appeared before a review officer. Both were represented by counsel. 10. Almost immediately after the worker had been sworn, the review officer commented "... we are going beyond the notice of disability ..." to which counsel for the worker answered "... the medical evidence had developed so that there is a psychological condition also supervening but the psychological condition might not necessarily solely be attributable to the last incident but rather be cumulative over the previous incidents ...". 11. The transcript contains frequent reference to "psychiatric aspects ..." allusions to "psychological condition" and medical reports. 12. When asked by the review officer at an early stage in the hearing, counsel for the worker stated it was a "post-traumatic stress disorder, I think". The review officer indicated that in his view there were two issues:
    "The broadening of the claim by the worker to include
    evidence relating to the psychiatric component which certainly,
    on the face of the application for review, does not appear ...
    I don't think it can be said that the psychiatric component is
    a total surprise to the employer ... I am of the view that we
    will hear the evidence of the worker, but I am happy to allow an
    adjournment to allow you to see the reports of Drs Czechowicz
    and Gabrynowicz ... having seen them, then I will allow you any
    further submissions in the light of considering them." 13. Counsel for the employer said: "I accept that is your ruling." 14. There was some discussion about producing the reports (apparently seen by Dr E. Scanlon when he examined the worker). Counsel for the worker who (surprisingly) did not have the reports with him at the hearing stated he would be calling both Drs Czechowicz and Gabrynowicz. Eventually, counsel for the employer (appellant) agreed that the matter proceed so that the worker could give his evidence, and then counsel for the employer would consider: "whether I am in a position to cross-examine at all or whether I wish to cross-examine ... until (I have) considered the information contained in the reports." 15. The respondent gave his evidence. The medical certificates dated 29 March, 5 and 23 April and 7 May 1990 were produced. In addition, counsel for the employer produced the medical certificates from the Department of Social Security sickness benefits dated 25 July and 12 September 1990. Together with the notice of disability these certificates became exhibit "W5". 16. The hearing was then adjourned until 13 March 1991 when there was some further discussion about reports. On 2 May 1991, counsel for the employer again raised the issues to be determined at the review. He submitted inter alia the claim was restricted to "physical disability resulting from work". He presumed that the evidence of Drs Gabrynowicz and Czechowicz would be to the effect that "it is a psychological and psychiatric condition from which the worker is suffering". 17. After further discussion, the review officer agreed that the effect of his ruling was that the worker is entitled to "broaden the scope of the proceedings in relation to some unspecified psychological or psychiatric conditions arising out of his employment". Counsel for the employer said his only concern was "it may cause some requirement for the matter to be adjourned or for further witnesses to be called". After some further discussion, counsel for the employer then cross-examined the worker. Other witnesses were called and cross-examined at the review hearing, namely, Drs Kreminski, Gabrynowicz, Czechowicz and Mills. The worker was further cross- examined after the doctors had given their evidence. Dr Edmund Scanlon gave evidence. Evidence given by a Patricia Barrett was for the purpose of producing the Commonwealth Rehabilitation Service files to the worker. Mr John Tomich, ear nose and throat surgeon, was called by the appellant. 18. Workers Compensation medical certificates relating to the worker were produced in relation to April and May 1988, and in relation to the notice of disability dated 3 November 1988 (certificates dated 19 October 1988 and 2 November 1988, and reports of Dr Marzec dated 14 November 1988 and Mr Matison 6 March 1989). Certificates and reports relating to the claim dated 8 May 1989 were numerous, finally resulting in the acceptance of that claim by notice from the appellant dated 11 July 1989. 19. In relation to the subject claim dated 10 April 1990, there were numerous exhibits tendered being compensation medical certificates, social security certificates, reports of many doctors including Drs E. Scanlon, Czechowicz, Gabrynowicz, Kreminski and Mills. On this material the review officer made his determination. This was a "fresh" determination as required by s.96(2) of the Act. The review officer was unable to find any satisfactory proof of an organic foundation for the disability but he concluded that the worker suffered from an anxiety and stress disorder resulting in his perception of pain manifesting itself as neck, nose, throat and ear pain. These disabilities were work related and incapacitated the worker from the duties available to him. The review officer then allowed the worker's claim for weekly payments of income maintenance. 20. On this material and background I turn to the question of law which I pose as follows: "Did the review officer's decision relate to 'a different alleged disability'?" Conclusion 21. By definition in s.3 of the Workers Rehabilitation and Compensation Act1986, "disability" of a worker means:
    "(a) any physical or mental injury including -
    (i) loss, deterioration or impairment of a limb, organ or
    part of the body or of a physical, mental or century faculty;
    (ii) a disease; or
    (iii) disfigurement;
    or
    (b) where the context admits - the death of a worker, and
    includes a secondary disability." 22. Secondary disability is defined in the same section as: "... a disability that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior disability." 23. Compensation under the Act is governed by Part IV - Division I "Conditions under which Disability is Compensable". By s.30, a disability is compensable "if it arises from employment". By sub-s.(2), a disability arises from employment if:
    "(a) in the case of a disability not being a secondary
    disability or disease, it arises out of or in the course of
    employment;
    or
    (b) in the case of a disability that is a secondary disability
    or disease -
    (i) the disability arises out of employment;
    or
    (ii) the disability arises in the course of employment and
the employment attributed to the disability." 24. By s.30(2)(a), a disability that consists of a disorder of the mind caused by stress is compensable if and only if the stress arising out of employment was a substantial cause of the disability, and under sub- s.(2)(b) the stress did not arise wholly or predominantly from the reasonable actions taken in a reasonable manner by the employer or a decision of the employer when 10 dealing with the worker in the ways listed under s.30(2)(b)(i), (ii) and (iii). 25. Compensation by way of income maintenance is provided for in Division IV of Part IV of the Act. For the purpose of determining the question of law in this appeal it is not necessary to consider in detail the provisions of that section but see generally James v The Workers Rehabilitation and Compensation Corporation (1991) 56 SASR 414 per Mullighan J affirmed on appeal in WorkCover Corporation v James (1992) 57 SASR 365. 26. By s.95, a person who is directly affected by a decision that is reviewable under sub-s.(2) of that section may apply for review of the decision. In the case at bar, the decision fell within sub-s.(2)(a) of s.95. By sub-s.(4) of s.95, an application for review must be in the prescribed manner and form and must be made within one month after the person applying for the review receives notice of the decision to which the review relates. By sub-s.(5), an application for review must be made in accordance with the regulations. In the case at bar there is no question that the application was other than in the prescribed manner and form as required by sub-s.(4) nor does any question arise as to the compliance with the regulations of the application. Counsel for the appellant contends that the Tribunal and originally the review officer were not entitled to broaden the issues determined by the employer which solely related to an alleged organic disability. 27. Reference is made by the original claim for compensation made on 10 April 1990 by the worker as well as to the medical certificates immediately supporting that claim. The rejection of the worker's claim for compensation specifically refers in counsel's submission to the claim for compensation based on an alleged organic disability. Counsel points out that in the review officer's determination, the claim in respect of the organic disability was rejected by the review officer. 28. Counsel for the appellant further submits that by reference to various sections in the Act, the claim determined by the exempt employer in this case was referable to a particular disability (as defined in the Act). Section 96 provides for the procedure by a review officer on the hearing of the review. That section states:
    "96. (1) Where an application for review is referred to a
    Review Officer, the review officer shall conduct the review of
    the decision to which the application relates.
    (1a) a party to the proceedings before the Review Officer must
    disclose to the Review Officer and all other parties to the
    proceedings the existence of all material in the party's
    possession or power and that may be relevant to the proceedings
    and must, if the Review Officer so requests, produce all or any
    of that material to the Review Officer.
    (2) On a review under this section, the Review Officer shall
    make a fresh determination of the matters to which the decision
    subject to review relates.
    (4) Where the Review Officer arrives at a decision that
    differs from the decision under review, the decision of the
    Review Officer shall take effect in substitution for that
    decision." 29. Reference may also be made to the principles relating to reviews provided for in Division V of Part VI of the Act headed "Proceedings before Review Authorities". Those principles which are contained in s.88 provide that:
    88. (1) In proceedings under this Act, a review authority -
    (a) shall act according to equity, good conscience and the
    substantial merits of the case without regard to technicalities
    and legal forms;
    and
    (b) is not bound by any rules of evidence, but may inform itself
    on any matter in such manner as it thinks fit.
    (2) ...
    (3) ...
    (4) A review authority must, in conducting its proceedings under
    this Act, act as expeditiously as possible." 30. This section has been discussed in several authorities in this court. I refer in particular to Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45 where this court held that a review officer has a duty no less extensive than that of the WorkCover Corporation to seek all relevant information to arrive at a determination to which the corporation, in proper exercise of its functions, ought to have come to in the first instance (see para.4 of the headnote on p.46). At p.51 of that case, it is noted that "the proceedings were not adversarial but of an inquisitorial nature". 31. In the case at bar, counsel for the appellant referred to the wide powers of the review officer as contained in ss.88, 89 and 90 of the Act. In this regard the comments of Olsson J in Spiel, (supra) at p.66 are relevant. Counsel for the appellant submitted, however, that those wide powers are qualified and confined by the provisions empowering review officers to determine as to reviews to the particular matters, the subject of decision under review. Great reliance was placed in this regard on another decision of this court, Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203. That was another judicial review case where the main arguments turned on whether there had been a denial of natural justice. The Full Court unanimously held:

    "1. The jurisdiction of the review officer is restricted to
    reviewing the decision sought to be impugned.
    2. In the instant case the review officer has sought to
    determine an issue not the subject of the Corporation's
    determination and in the event acted outside her jurisdiction." 32. The main issue that arose in that appeal was encapsulated by Olsson J at p.210 when his Honour said:
    "The fundamental question of whether or not a situation has
    arisen whereby the incapacity of the worker to work more than
    about two hours per day in some suitable occupation arose from a
    cause which was non-compensable, was never put in issue as
    between WorkCover Corporation and the appellant. Thus it was
    not, and could not have been, the subject of a proper
    application for review.
    All that was in issue was whether or not the conclusion of
    WorkCover Corporation that the appellant had arrived at a stage
    at which he had a residual capacity for 10 hours per week at a
    form of employment as to which there was a reasonable prospect
    of him obtaining work was validly arrived at. This was not the
    topic to which the review officer directed her attention and she
    did not ever decide it." 33. In that case, the review officer determined inter alia that the worker's pain was not incapacitating and that the worker became bogged down with the bureaucratic complexities of rehabilitation and the WorkCover system and that retraining had unfortunately been unsuccessful. Accordingly, he found that the worker was no longer incapacitated for work by reason of the compensable disability. 34. In my judgment, the facts relating to the appellant's injuries in Wiechmann's case were distinguishable and different from the disabilities which the worker claimed as being compensable in this case. Clearly there was a long history here supported by a number of medical certificates and reports. It was the duty of the review officer under the Act to consider this history and these reports and certificates in relation to the claim for compensation made in April of 1990. It is clear that this is what the review officer did. His review functions were clearly carried out in accordance with the principles in the cases of Spiel (supra) and Wiechmann (supra), as well as other decisions of this court touching on the point. In my judgment there was no broadening of the issues by the review officer when the 15 reports of Drs Czechowicz and Gabrynowicz came to light in a somewhat awkward manner early during the hearing. it is clear that the employer knew of the existence of these reports and in accordance with the requirements of s.95(1a), the employer produced these and other reports. There is clear evidence of a "depression" in those certificates by Dr Kreminski and of a stress disorder by the two psychiatrists who spoke the worker's language (Polish). 35. I would answer the question posed to this court by the appellant as follows: the review officer reviewed the appellant's disabilities which were clearly raised by the medical material available to the employer and accordingly there was never any broadening of the issues. In my opinion, the review officer did not make a determination of a "different alleged disability". The review officer reviewed a disability which was alleged to be physical and psychological; but found that it was the anxiety and stress disorder resulting in the worker's perception of pain that incapacitated him from performing his duties at work. This was a finding that the worker's disability was a "mental" injury which included a secondary disability (see s.3(1) definition of "disability" and "secondary disability"). 36. For these reasons I would dismiss the appeal.

JUDGE2 MOHR J I agree with the decision of Legoe J

JUDGE3 BOLLEN J I agree that the question posed to this Court by the appellant should be answered as proposed by Legoe J. I agree with the reasoning of Legoe J. I, too, would dismiss the appeal.