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

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").

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.

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.

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."

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."

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."

On the resumption of the hearing, the employer unsuccessfully…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] TASSC 12
Decision Date: 22 February 2001

CaseChat Overview and Summary

In this case, the Supreme Court of Tasmania heard an appeal concerning the jurisdiction of the Workers Rehabilitation and Compensation Tribunal in relation to a referral matter after it had ruled that the medical certificate supporting the worker's application did not comply with the relevant provisions of the Workers Rehabilitation and Compensation Act 1988. The appellants, QBE Insurance Limited and State Fire Commission, argued that the Tribunal had no jurisdiction to proceed further in the matter. The respondent, Lindsay John Kingston, referred the matter to the Tribunal seeking determination of his entitlement to weekly payments and medical expenses.

The primary legal issues the court was required to decide were whether the Tribunal retained jurisdiction to hear and determine a referral matter after ruling that the medical certificate did not comply with the Act and whether the absence of a valid medical certificate precluded the Tribunal from having jurisdiction over the matter. The court examined the provisions of the Act, particularly sections 25, 69, and 81A, and considered the relevant case law.

The court found that the certification process was a condition precedent to the entitlement to compensation under the Act. Once a determination had been made that the medical certificate did not comply with the statutory requirements, the Tribunal's jurisdiction to proceed further in the matter was concluded. The court held that the absence of a valid medical certificate precluded the Tribunal from having jurisdiction over the matter. As a result, the appeal was allowed, and the order of the Tribunal was set aside. The court invited counsel to make submissions with respect to the final disposition of this matter.

Orders