Mosaic Support Services (Tas) Inc v Woolley

[2023] TASSC 27

[2023] TASSC 27

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Mosaic Support Services (Tas) Inc v Woolley [2023] TASSC 27
PARTIES:	MOSAIC SUPPORT SERVICES (TAS) INC
v
WOOLLEY, Jason David
FILE NO:	95/2023
DELIVERED ON:	11 August 2023
DELIVERED AT:	Hobart
HEARING DATE:	15 June 2023
JUDGMENT OF:	Marshall, AJ
CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Error of law – Workers compensation – Whether weekly payments terminated lawfully under s 86(1)(c) – Whether Tribunal erred in finding that respondent’s incapacity for work was as a result of injury the subject of weekly payments – Whether Tribunal failed to provide reasons for preferring conflicting expert evidence – Tribunal satisfied responsibility to disclose reasoning process – Tribunal did not err in finding incapacity was as a result of injury the subject of weekly compensation payments – Appeal dismissed.

Aust Dig Administrative Law [1030]

REPRESENTATION:

Counsel:

Appellant:	K Read SC, B Hilliard
Respondent:	R Phillips, A Kendall

Solicitors:

Appellant:	Abetz Curtis Lawyers
Respondent:	Phillips Taglieri

Judgment Number:	[2023] TASSC 27
Number of paragraphs:	51

Serial No 27/2023

File No 95/2023

MOSAIC SUPPORT SERVICES (TAS) INC v JASON DAVID WOOLLEY

REASONS FOR JUDGMENT MARSHALL AJ
11 August 2023

1 This matter is an appeal from a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal") which held that the appellant had not lawfully terminated the weekly payments of the respondent under s 86(1)(c) of the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The Tribunal also dismissed a referral made to it by the respondent under s 88 of the Act.

The legislative context

2 Section 86(1)(c) of the Act allows an employer to seek to terminate weekly payments of compensation to an injured worker. It provides that if:

"… a medical practitioner who has examined the worker has confirmed that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury."

3 The second limb of s 86(1)(c) of the Act was relied upon by the appellant before the Tribunal. Therefore, the critical issue for determination by the Tribunal was whether or not the respondent's incapacity for work was no longer due, wholly or substantially, to the injury for which he was in receipt of weekly payments of compensation.

4 The Tribunal found that the injury, in relation to which weekly payments of compensation being made to the respondent, was an exacerbation of pre-existing degenerative changes in the respondent's spine. Under the definition of "injury" in s 3 of the Act, degenerative changes can only constitute an injury if the employment or work of the worker is the "major or most significant" contributing factor to that exacerbation.

5 Section 88(1) of the Act, permits an employer to refer to the Tribunal the question as to whether weekly payments should be terminated. Under s 88(2), the Tribunal is empowered to terminate the weekly payment, or reduce it, if it considers that there has been a lawful termination of the payment under s 86(1).

Background Facts

6 The respondent suffered an injury in his employment on 6 July 2020. It was a lumbar strain injury, being an exacerbation of a pre-existing degenerative condition. A medical practitioner certified that the respondent was totally incapacitated for work from 31 July 2020. The respondent has not returned to work since. The appellant employer accepted liability for the respondent's claim for compensation and commenced to pay him weekly payments under the Act.

7 On 9 November 2021, the appellant made a referral to the Tribunal for a review of the weekly payments being made. That referral was permitted by s 88(1) of the Act.

8             The appellant terminated the respondent's weekly payments from 26 November 2021. This action was based on a certificate signed by Dr Drewry on 29 October 2021 which stated that the respondent had suffered an injury on 6 July 2020 and that any incapacity he was suffering was no longer wholly or substantially as a result of that injury.

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9 The respondent worker disputed the termination of his weekly payments. He served a notice under s 86(4) of the Act referring the matter to the Tribunal for determination.

10           The date for assessment as to whether the incapacity to work was no longer due, wholly or substantially to the injury suffered on 6 July 2020 was the date of the examination by the certifying doctor of the respondent worker, being 22 September 2021.

The Tribunal's decision

11 After considering competing medical evidence (as well as the evidence of the respondent and his wife), the Tribunal found that the respondent's incapacity (as at 22 September 2021), was the result of the injury which he sustained on 6 July 2020. The Tribunal found to the effect that the second limb of s 86(1)(c) was not satisfied. Considering the evidence as a whole, the Tribunal was not satisfied that the respondent's incapacity was no longer due wholly or substantially to that injury. On the contrary, the Tribunal found that the current incapacity (as at 22 September 2021) of the respondent was "as a result" of the 6 July 2020 injury.

12   At [195] of its reasons, the Tribunal said:

"The evidence is that the worker has ongoing effects of the injury. He was fit to go to work in his normal employment prior to the injury but was incapacitated for work after it and that remains the situation."

13   At [196] the Tribunal said:

"The fact that the worker's pre-existing injury may have, in its ordinary course, increased in gravity over time to the point that it caused an incapacity for work is speculative … The evidence was that it was an incident at work on 6 July 2020 that in fact made the worker's pre-existing degenerative disease in his spine worse and caused his incapacity for work. There is no evidence of any intervening event which broke the chain of causation."

By the last sentence, I take the Tribunal to mean that nothing else happened to the respondent which altered the condition of his spine after 6 July 2020. In other words, the 6 July 2020 incident caused an injury and incapacity to work and that remains so.

14 The Tribunal determined that there had not been a valid termination of the respondent's weekly payments of compensation pursuant to either limb of s 86(1)(c) of the Act and determined the s 88 referral accordingly. The appellant's appeal relies on three grounds.

Ground 1

15          The first ground of appeal takes issue with what the appellant alleges is the incorrect legal test applied by the Tribunal when it said the following at [188]:

"In order to satisfy its onus of proof, an employer must establish that notwithstanding the fact that the worker suffered the injury that caused an incapacity to work, the stage had been reached, as at the date the certificate was signed, that the pre-existing degenerative changes in his lumbosacral spine would have, in any event, become symptomatic to the extent of producing his current capacity for work."

16           In considering this ground it is pertinent to note that the language used by the Tribunal is very similar to language used by Zeeman J in Returned Services League of Australia (Devonport Sub Branch) v Philip Neil Garwood [1995] TASSC 111 ("Garwood"), which was a matter where the question of costs was considered after a successful application by a worker under s 86(4).

17   At (11) in Garwood, Zeeman J said:

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"11 Despite Mr McIntyre's certificate also having raised the nature and extent of the respondent's incapacity, whatever its cause, it was the appellant's submission before the learned Commissioner that the accepted incapacity of the respondent no longer had a sufficient causal connection with his injury. In order to succeed on the reference it was necessary for the appellant to establish that the respondent had substantially recovered from the effects of the injury in the sense that continuing incapacity could no longer be said to result from the injury… The appellant could not succeed on the reference unless it established that, notwithstanding that the injury had been the trigger for making the previous asymptomatic condition symptomatic, the stage had not been reached whereby that condition would, in any event, have become symptomatic to the extent of producing incapacity for work."

18 The question for the Tribunal to determine was properly addressed and answered at [195]. At [188] the Tribunal, like Zeeman J in Garwood at [11], did not state a definite test but gave an example about how the test could be satisfied by an employer.

19          It is beyond doubt that the Tribunal ultimately found that the injury suffered on 6 July 2020 by the respondent continued to have ongoing effects such that he remained incapacitated as a result of that injury. As a consequence, the Tribunal considered the correct test and applied it based on the evidence before it. There is no merit in Ground 1.

Ground 2

20           The second ground of appeal is that the Tribunal erred at [213]-[215] of its decision in considering the present capacity of the worker to earn rather than engaging in the necessarily speculative exercise of considering what he would be able to earn in suitable employment.

21           At [213] the Tribunal observed that there was no evidence that any employer would consider the respondent worker as an applicant for positions which had been identified by a vocational assessor. At [214], the Tribunal remarked to the effect that any engagement by the respondent in a rehabilitation process was speculative and at [215] found to the effect that any capacity the respondent may have for work would not allow him to earn income in a "suitable employment or business".

22           The discussion at [213]-[215] of the Tribunal's reasons was part of its fact finding. It showed that it considered, on the evidence before it, that the respondent was still incapacitated for work in a suitable employment or business. As to which, see MMI General Insurance Limited v Donnelly [2000] TASSC 143 at [10], per Underwood J (as his Honour then was).

23 The appellant says that the issue identified by the Tribunal at [213] is one to be addressed under s 69(4)(c) of the Act and not in a s 88 referral. The appellant submits that the requirement under s 88 is to consider the physical condition of the worker and the nature and character of his occupation before the injury and not whether a prospective employer would consider him for a position.

24           The finding of the Tribunal at [213]-[215] informed its opinion that the respondent was not able to re-engage in suitable, gainful, employment because he was still suffering the effects of the 6 July 2020 injury. The discussion at [213]-[215] explains, in part, the basis upon which that finding of fact was made. None of what appears there seeks to displace any onus which falls on any party.

25 Under s 69(4)(b) of the Act an employer must first establish that the worker has partial incapacity for work as distinct from total incapacity. If partial incapacity is established, the employer is required to establish the amount that the worker would have be able to earn in suitable employment; see Bridgewater Abattoirs Pty Ltd and Hih Winterthur Pty Ltd v David Luke Willing [1996] TASSC 120, per Zeeman J.

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26           In this case the referral was filed on 9 November 2021. At all times since, the respondent has remained incapacitated for work according to the findings of the Tribunal on the evidence before it to that effect.

27           Accordingly, the issues raised by ground 2 did not arise and it was strictly unnecessary for the Tribunal to consider the issue of possible future earnings for the respondent in some form of employment. Nothing said at [213]-[215] of its reasons detracts from the fact that the Tribunal elsewhere unambiguously applied the correct test, for example at [195], and that the observations at [213]-[215] were not essential for its decision.

28   Ground 2 is not made out.

Ground 3

29           At the hearing of the appeal, Senior Counsel for the appellant sought leave to amend the notice of appeal to remove the then extant ground 3 and replace it with a new ground 3. The Court required that the appellant put the precise terms of that ground in writing, and to make submissions in writing as to the question of leave to raise that ground at this stage and submissions as to its merits. The respondent was given a right to make submissions in response subsequently on those two issues.

30   The text of the proposed new ground is:

"That the Tribunal erred in law in failing to provide reasons for preferring the
opinions of Drs Perry and Francis to those of Drs Drewry and Jonathan".

31           Leave was sought to amend on the basis that the real questions in controversy between the parties should be resolved and that no prejudice arises as the issue will be the subject of an exchange of written submissions. There is merit in those contentions. Accordingly, I grant leave for the new ground to be added.

32           The appellant submitted that the Tribunal has a duty to give adequate reasons for its decision and that that duty extends to providing reasons for preferring the evidence of one expert rather than the conflicting evidence of another expert.

33          The appellant contended that the Tribunal preferred the evidence of Drs Perry and Francis to that of Drs Drewry and Jonathan but does not say why.

34           Tribunals have a duty to give reasons for their decisions. The decisions must disclose a reasoning process. There is no obligation on a Tribunal to refer every piece of evidence before it or even most pieces of evidence before it, but it is obliged to provide an understanding to the reader of its decision as to how it came to its decision.

35           At [23] and following, the Tribunal discussed the evidence of Dr Drewry. At [23] it referred to Dr Drewry not keeping any notes or records of her original assessment of the respondent worker. At [24] reference is made to Dr Drewry "not taking a step by step account of what the worker was doing at the time of the injury". At [27] reference is made to Dr Drewry not "physically examining or treating" the respondent.

36          At [32] and following the Tribunal discussed the evidence of Dr Jonathan. It observed at [35] that Dr Jonathan's assessment was conducted by video conference with the respondent.

37           At [44] the Tribunal referred to the evidence of Dr Jonathan that the respondent's back symptoms were escalating since January 2020 but at [45] the Tribunal noted, when cross-examined, Dr Jonathan agreed that the medical records relating to the respondent's consultations with his general practitioner between January and June 2020 showed no escalation of his back issues.

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38          At [51] the Tribunal noted that Dr Jonathan agreed that he had no evidence that the respondent was not fully functional before the injury incurred on 6 July 2020.

39           In contrast to Drs Drewry and Jonathan, the Tribunal observed at [61] that Dr Francis "had prepared a number of reports in relation to the worker …". Those reports and his evidence before the Tribunal dealt with issues he had with important aspects of the opinion of Dr Drewry, set out at [62] of the Tribunal's reasons.

40           At [75] and following in discussing the evidence of Dr Perry, the Tribunal noted that Dr Perry saw the respondent three days after the 6 July injury. He was described at [76] as "the employer's preferred treating doctor". (Emphasis applied.) At [87] the Tribunal noted Dr Perry's evidence that "he regularly sees workers for employers and he is the doctor of choice for some industries in the northern suburbs". It is clear from the evidence of Dr Perry that he had a great more to do with observing the respondent than either Dr Drewry or Dr Jonathan.

41           The evidence before the Tribunal showed that Drs Perry and Francis had many more dealings with the respondent and displayed a greater insight into his condition than did Dr Drewry or Dr Jonathan.

42           At [177] the Tribunal observed Dr Drewry's acceptance that "as a result of the incident at work on 6 July 2020, the worker suffered an exacerbation of the pre-existing degenerative disease of his lumbosacral spine. The evidence indicates that the immediate effects of the exacerbation on the worker included pain in the right lower back and buttock which has continued. The ongoing effects of the injury are hyperalgesia, chronic pain, fear and avoidance of activities, distress, anxiety, depression and dependence upon opioids and analgesic medication."

43          The Tribunal then discussed Dr Drewy's opinion to the effect that opioid dependence is the major issue with the respondent.

44   At [183] the Tribunal identifies the evidentiary conflict where it says:

"All of the medical evidence accepts that the worker has at least a partial incapacity for work. Dr Drewry and Dr Jonathan are of the opinion that this incapacity does not result from the injury of 6 July 2020. The health practitioners are of the opinion that it is the effects of the injury that are the cause of the worker's incapacity to work".

45           At [186], the Tribunal found that the respondent had not recovered from the effects of the injury. It can be inferred from that observation shortly after identifying the conflict between the two streams of evidence that it accepted, on the totality of the evidence, that the effects of the injury remained the cause of the worker's incapacity. In addition the evidence of the respondent and his wife were consistent with that view.

46           At [191] the Tribunal referred to evidence from Dr Jonathan that the respondent had a disease to his spine which was progressing, but compared at [194] that evidence with other evidence before it that the incident on 6 July 2020 made the respondent's pre-existing, degeneration changes worse. The Tribunal then compared that evidence with the precise evidence of Drs Perry and Francis on that point at [197]-[198].

47 In considering the s 88 referral the Tribunal fulsomely referred to the evidence of Drs Perry and Francis about the respondent's incapacity for work. The Tribunal also referred to Dr Drewry's continued reliance on the alleged opioid use by the respondent, for which no corroborative evidence was advanced by the appellant. The opinions of Drs Perry and Francis were consistent with all the other evidence, including a report referred to at [209] that the respondent is "not currently fit for paid work".

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48           By the way the Tribunal dealt with the evidence of Drs Drewry and Jonathan and highlighted difficulties the Tribunal had with aspects of that evidence, and by the way the Tribunal more extensively referred to the evidence of Drs Perry and Francis, it is clear when the decision of the Tribunal is read as a whole, why the Tribunal preferred the evidence of Drs Perry and Francis to that of Drs Drewry and Jonathan. No doubt that preference could have been made even plainer but the Tribunal satisfied its responsibility to provide reasons for its decision and disclosed a reasoning process. To observe that the process may have added more verbiage as to why certain medical evidence was preferred over other medical evidence is not the identification of an error of law.

49           Read fairly and comprehensively the Tribunal's reasons are redolent with indications or inferences that it did not accept many aspects of the evidence of Drs Drewry and Jonathan where it conflicted with critical aspects of the evidence of Drs Perry and Francis. The decisions of Tribunals are not meant to be documents perfected by parliamentary draftsmen. It is inappropriate to trawl through them with a fine tooth comb, looking for error when the context of what is being said is clear from the entire decision, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6, 185 CLR 259, per Kirby J at [24].

50           The written submissions of the respondent on the question of whether leave should be granted to the appellant to rely on the new ground 3 as well as the submissions on the merits of that proposed ground seek to engage with the arguments of the respondent by reference to grounds 1 and 2. Ground 3 is entitled to be considered in isolation as it makes a separate point. However, for the reasons set out above, it lacks merit. Leave is given to raise that ground but the ground is rejected.

Disposition

51   The Court will order as follows:

1      Leave is given to the appellant to amend its notice of appeal to raise new ground 3.

2      The appeal is dismissed.

3      The appellant is to pay the respondent's costs of and incidental to the appeal.