QBE Insurance Limited v Kingston

[2001] TASSC 12

[2001] TASSC 12

CITATION:                 QBE Insurance Limited & Anor v Kingston [2001] TASSC 12

PARTIES:  QBE INSURANCE LIMITED
  STATE FIRE COMMISSION
  v

KINGSTON, Lindsay John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA69/2000
DELIVERED ON:  22 February 2001
DELIVERED AT:  Hobart
HEARING DATES:  9 February 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Medical provisions - Jurisdiction of Commission - Validity of non-compliant medical certificate.

Workers Rehabilitation and Compensation Act1988 (Tas), ss25, 69, 81A.
Barber v Ryan (1999) 8 Tas R 308; Pasminco Australia v Simmons A50/1992, followed.
Aust Dig Workers Compensation [151]

REPRESENTATION:

Counsel:
             Appellants:  M E O'Farrell
             Respondent:  R M Grueber
Solicitors:
             Appellants:  Dobson Mitchell & Allport
             Respondent:  Jennings Elliott

Judgment Number:  [2001] TASSC 12
Number of Paragraphs:  16

Serial No 12/2001
File No LCA69/2000

QBE INSURANCE LIMITED and STATE FIRE COMMISSION v
LINDSAY JOHN KINGSTON

REASONS FOR JUDGMENT  SLICER J

22 February 2001

1. This appeal concerns the issue of whether the Workers Rehabilitation and Compensation Tribunal (the Tribunal") retains jurisdiction to hear and determine a referral matter after it has ruled that the medical certificate supporting a worker's application did not comply with the relevant provisions of the Workers Rehabilitation and Compensation Act 1988 ("the Act").

1. The respondent was injured in a work related accident on 31 March 1993.  He made a claim and was paid weekly payments until his return to employment when those payments were lawfully terminated.  The original injury was physical in nature, namely a fracture to the leg.

1. On 13 September 1996, the respondent delivered to the employer a medical certificate stating that he was unfit for any work for the period 13 - 27 September 1996. The certificate stated that the provisional diagnosis was "post traumatic stress" caused by "multiple related incidents precipitated by the accident on 31/3/93" with the injury being described as "work related stress". Subsequent certificates were supplied, together with accounts for the cost of medical and other services. The employer neither paid compensation nor moneys due in respect of those accounts, nor referred the matter in accordance with the Act, s81A.

1. The respondent referred the matter to the Tribunal on 19 May 1999, seeking determination of:

"My entitlement to weekly payments for periods covered by medical certificates between 13 September 1996 and 12 March 1998 received by the employer and medical expenses in respect to medical accounts received by the employer after 3 September 1996."

and stating that the referral was:

"… made pursuant to Section 42 and Section 81AB."

1. The Tribunal determined as a preliminary point that the:

"… certificates did not satisfy the requirements of S69(1) and thus do not entitle the worker to payment of weekly compensation."

1. Neither party seeks to challenge that determination. However, the Tribunal added:

"It follows that, the worker's reference will be adjourned to a date to be fixed for the hearing of the substantive issues."

1. On the resumption of the hearing, the employer unsuccessfully contended that the Tribunal had no jurisdiction to proceed further since, absent valid certification, there was no claim before the Tribunal.  The appellants seek review of that determination.

1. The Tribunal gave the following reasons in support of its conclusion that it retained jurisdiction:

"5 I do not accept the employer's submission. By proceeding with the preliminary matter the worker sought to persuade the Tribunal that the medical certificates on their face and without other evidence satisfied the requirements of s69(1) and thereby entitled the worker to weekly payments of compensation by operation of s81 AB, the employer not having disputed liability (s81 A). Any determination that the worker was entitled to those weekly payments was dependant upon the Tribunal being satisfied, on the evidence constituted only by the certificates, that the worker was incapacitated by his post traumatic stress condition and that such condition resulted from the initial leg injury for which the employer had a liability to pay compensation. I determined that the medical certificates were not sufficient for the purposes of s69(1) because they did not on their face clearly and unambiguously establish the necessary nexus between the worker's post traumatic stress condition and the original leg injury for which the employer had a liability to pay compensation. However, it is an error in my view to equate my determination that the certificates do not meet the requirements of s.69(l) with the conclusion that this Tribunal does not have jurisdiction to entertain the worker's reference in so far as it seeks weekly payments.

6 This is so because the Tribunal's jurisdiction is not dependant upon the sufficiency of Dr Saul's medical certificates, but instead exists by virtue of Section 42(1). The relevant part of that Section provides:­

'42(1) A claim for compensation may be referred to the Tribunal by ‑

(a)   an injured worker or a dependent of an injured worker;'

By Section 3(1) a 'claim for compensation' is defined as 'a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim.'

By his reference, the worker purports to refer to the Tribunal 'my claim for compensation'. That claim in my view must be the initial claim for compensation made on 5 April 1993. The worker's contention that he has an entitlement inter alia to weekly payments of compensation for the period 13 September 1996 to 12 March 1998 is a matter, or question, in my view which arises in connection with, or incidental to, the worker's initial claim. As such, it is a claim for compensation within the definition of that term and accordingly is properly before the Tribunal upon the reference made pursuant to Section 42. Clearly, if the worker is to obtain an order upon that reference that he has an entitlement to weekly payments for the period sought, it will be necessary for the Tribunal to be satisfied that the requirements of Section 69(1) have been met. Whilst it is true that at this time the Tribunal has determined that the medical certificates of Dr Saul, on their face, are insufficient by themselves to satisfy the requirements of Section 69(1), it does not necessarily follow that an identical determination would be made upon a hearing of the Section 42 reference when the Tribunal may receive evidence capable of clarifying the certificates so that the Tribunal could be satisfied that the requirements of Section 69(1) have been met.

7    For these reasons I determine that this Tribunal has jurisdiction upon this reference, including jurisdiction to determine the worker's entitlement to weekly payments for that period stated in the reference."

1. The notice of appeal claims error on the grounds that:

"1   The learned Commissioner erred in law in not dismissing the worker's reference relating to his entitlement to weekly payments once the learned Commissioner had determined that the medical certificates constituting the claim and relied upon by the worker ('the certificates') did not comply with the Workers Rehabilitation and Compensation Act 1998 ('the Act').

2 The learned Commissioner erred in law in determining that he had jurisdiction to continue hearing the worker's reference despite holding that the certificates did not satisfy the requirements of the Act.

3 The learned Commissioner erred in law that the Tribunal had jurisdiction to continue hearing the matter, and may receive evidence capable of clarifying the certificates, despite having determined that the certificates did not comply with the Act."

1. The Act, s69(1) relevantly provides:

"69 ¾ (1)   Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person, the compensation payable to him under this Act is, in addition to any lump sum that may be payable under section 71 or 72 in respect of that injury ¾

(a)in the case of the total incapacity of the worker for work, weekly rate payments equal to ¾

(i)   the normal weekly earnings of the worker; or

(ii)  the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity ¾

whichever is the greater; or

(b)in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker's normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity."

The section requires:

·    the occurrence of an injury;

·    partial or total incapacity resulting from that injury;

·    that the existence of such incapacity is supported by "a certificate in the prescribed form by a medical practitioner".

1. The absence of such a certificate precludes a finding that the incapacity claimed was a consequence of the injury which, in turn, impacts upon the question of entitlement as required by the Act, s25 which requires that the injury is one:

"… arising out of and in the course of … employment."

Compliance with certification as required by the Act, s69(1) is a precondition to the entitlement to compensation afforded by the Act, s25.

1. The Tribunal was conscious of the effect of non-compliance with the Act, s69, but determined that it retained sufficient jurisdiction to permit the worker to adduce evidence clarifying or rectifying any procedural defects. The Tribunal stated that it derived jurisdiction from the effect of the Act, s42 which related to the original claim made on 5 April 1993 and that the 1996 claim was one:

"… in connection with, or incidental to, the worker's initial claim."

1. In Muir v Dance (1997) 7 Tas R 1, Underwood J, in considering the effects of the Act, s69, stated at 8:

"… once a claim for compensation is made and not contested as prescribed by s81a(1), and incapacity for work actually exists and its existence is supported by a certificate by a medical practitioner, an entitlement to weekly payments arises."

and concluded at 9:

"Section 81(1) obviously refers to the weekly payments, entitlement to which is conferred by satisfaction of the conditions set out in s69. It has been held (Pasminco v Simmons Serial No A50/1993), again although the Act does not so provide, that where there is incapacity for work, production of a medical certificate supporting the existence of that incapacity for a specified period is in the nature of a condition precedent to entitlement to receipt of payments for that period."

1. It is the certification which defines the claim and gives rise to entitlement, (Barber v Ryan (1999) 8 Tas R 308). The respondent's contention that jurisdiction is retained by the combined effects of the Act, ss25, 32, and 34, is weakened by the terms of s34(1)(b) which requires the claim to be:

"… accompanied by a prescribed certificate from a medical practitioner."

1. Refined,. the submission of the respondent is that the terms of s69 refer to payment rather than entitlement. Failure to supply a valid certificate might preclude payment, but not entitlement. The Tribunal might not order payment but it could accept entitlement subject to the provision regarding proper certification. In such a case it is said it retains jurisdiction so as to permit further or supplementary evidence which, if accepted, would permit an order for payment. Counsel relied upon the decision of Wright J in Pasminco Australia Ltd v Simmons A50/1992 in support of this contention. In considering the effect of a certificate supplied in accordance with s69, the meaning of which was in dispute, Wright J stated at 9:

"However, I cannot think that a worker who complains that his employer has misconstrued a medical certificate provided to him and as a consequence has ceased making weekly payments must do more than establish to the learned Commissioner's satisfaction that the certificate provided, either on its face or supplemented by evidence of the worker's employment history of the kind given before the learned Commissioner on the present occasion, amounted to a certification of an ongoing incapacity under the provisions of s69(1). In short, if the certificate in dispute either on its face or construed in the light of relevant evidence, certifies an ongoing incapacity, that is an end of the matter so far as proceedings before the Workers' Compensation Commissioner are concerned. The employer cannot in such circumstances then seek the benefit of the sort of determination which he might achieve by utilization of s86 without making a specific application pursuant to that section."

and at 11:

"Notwithstanding his assessment that the medical certificate obtained by Mr Simmons from Dr Stewart contained ambiguities, the learned Commissioner was in my opinion, entitled to take the view that the certificate was one which gave support to the continuation of weekly payments and was thus a certificate complying with s69(1). He was entitled, in my opinion, to interpret the certificate against the background of the evidence given by Mr Simmons and Mr Hill. Read against this background, the certificate becomes much clearer. Firstly, it should be noted that it purports to be a "progress" rather than a "final" certificate. Secondly, although it certifies that the worker is "fit for normal duties", this must be read in light of what follows viz, that the doctor says Mr Simmons is only "substantially recovered" and, more importantly, that he is to "continue with Kevin Marshall" - Kevin Marshall being his supervisor in the public relations section. It seems to me that the certificate is saying that Mr Simmons is fit for "normal" duties in the sense that work in public relations rather than the cell room was seen to be his "normal" duties. Read in this way the certificate makes sense. If cell room duties are his "normal duties", the certificate makes no sense at all. Once the learned Commissioner made this determination, further evidence as to the actual capacity or incapacity of Mr Simmons for work became irrelevant unless and until a s86(4) application was made."

The statements were directed at meaning or textual analysis. There might be circumstances where a certificate which is indecipherable because of writing or damage, or written in a foreign language, could be interpreted or explained by supplementary evidence. But that course is internal to the document and relates to the issue of validity of the certification. Jurisdiction exists for the purpose of determining whether or not there is valid certification. If that certification is determined to be defective, then the issue is determined and the matter concluded. Where there is disputation as to the meaning or effect of certification, then the surrounding evidence might permit resolution of the issue. But once a determination is made to the effect that the certification does not comply with statute, then there remains no residual jurisdiction so as to permit re-agitation of the issue by further evidence. In this case, once the Tribunal had determined that the certificate did not comply with the Act, s69, the application was concluded and no further jurisdiction resided in the Tribunal.

1. The appeal is allowed.  The order of the Tribunal is set aside.  Counsel are invited to make submissions with respect to the final disposition of this matter.