State of Tasmania v Wylie
[2000] TASSC 128
•15 September 2000
[2000] TASSC 128
CITATION: State of Tasmania v Wylie [2000] TASSC 128
PARTIES: STATE OF TASMANIA
v
WYLIE, Joan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 54/2000
DELIVERED ON: 15 September 2000
DELIVERED AT: Hobart
HEARING DATE: 14 August 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of tribunals, boards, commissioners, etc - Tasmania - dispute procedure required by s81A(1)(c) - Form of notice of dispute - Whether sufficient evidence that agent of employer had authority to dispute liability to pay compensation.
FAI General Insurance Company Limited & Anor v De Saye 23/1992; GIO Australia Ltd v Lovell [2000] TASSC 75, referred to.
Workers Rehabilitation and Compensation Act1988 (Tas), s81A(1)(c).
Aust Dig Workers Compensation [143]
REPRESENTATION:
Counsel:
Appellant: P Turner
Respondent: A I Gaggin
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Jennings Elliott
Judgment Number: [2000] TASSC 128
Number of paragraphs: 9
Serial No 128/2000
File No LCA 54/2000
STATE OF TASMANIA v JOAN WYLIE
REASONS FOR JUDGMENT COX CJ
15 September 2000
On 7 June 2000, the respondent ("worker") made a claim for compensation upon the employer alleging in her worker's report that she was suffering from acute anxiety state secondary to stress at work. The employer disputed its liability for this claim and referred the matter to the Tribunal pursuant to s81A(1)(d). At the hearing of the reference, counsel for the employer sought an adjournment on the basis that the employer was not in a position to proceed because it had not received an investigation report which it had commissioned concerning the circumstances surrounding the worker's claim. Counsel representing the worker opposed the adjournment, but at the same time submitted that the Tribunal did not have jurisdiction upon the reference in any event because it was claimed that the notice of dispute served upon the worker pursuant to s81A(1)(c) was deficient in that it was given, not by the employer, but by the insurer without there being any evidence that the insurer was the employer's properly authorised agent. The learned Commissioner, in the result, on 25 July 2000, held that there was not any evidence before the Tribunal which was sufficient to permit a finding that HIH Insurance ("HIH"), which had purported to make the referral and to give the necessary statutory notice to the worker, had the authority of the employer as its agent to give notice to the worker disputing her claim and that he accordingly had no jurisdiction upon the employer's reference which he thereupon dismissed.
The employer appeals upon the following grounds:
"1 The learned Commissioner erred in law in finding that there was no sufficient evidence that HIH Insurance was the agent of the Appellant for purposes of giving notice to the Respondent under Section 81A(1)(c) of the Workers Rehabilitation and Compensation Act 1988.
2 The learned Commissioner erred in law in that no Tribunal, having properly informed itself of the law, could reasonably make an order dismissing the reference."
The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A(1) provides:
"81a ¾ (1) An employer who disputes liability ¾
(a)to pay compensation by way of weekly payments for an injury referred to in section 81(1); or
(b)to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury ¾
must, within 14 days of receiving the claim for compensation in respect of the injury to the worker ¾
(c)serve the worker with written notice that the employer disputes liability ¾
(i) to pay compensation by way of weekly payments and must inform the worker of the reasons for disputing liability; or
(ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury and must inform the worker of the reasons for disputing liability; and
(d)refer the matter to the Tribunal."
The material before the learned Commissioner included a referral in these terms:
"REFERRAL TO TRIBUNAL (S81A)
To the Registrar, Workers Rehabilitation and Compensation Tribunal
Employer The State of Tasmania (Department of health and Human Services)
(Address) C/-- Clive Hamilton Memorial Building,, St John's Avenue, New Town 7008
Worker Joan Wylie
(Address) PO Box 1002, Burnie 7320
Insurer (If applicable) HIH Insurance
1We The State of Tasmania (Department of Health and Human Services) being the employer/authorised agent of the employer of Joan Wylie who has made a claim for compensation under the Act in relation to an injury, dispute any liability to pay compensation by way of weekly payments and/or cost of benefits under division 2 of Part VI in respect of the injury.
21 hereby refer the matter to the Tribunal under Section 81A.
31 have notified the worker in writing that I dispute liability to pay compensation and have informed the worker of my reasons for disputing liability.
4Weekly payments are not being made to the worker.
5I enclose the required documents with this referral
Our reasons for disputing liability to pay compensation are as follows:- (Specify exact reasons)
1) That there is insufficient information to substantiate that the workers condition arose out of and in the course of employment and that employment was the most significant contributing factor in the onset of the condition.
2) That the injury the worker may be suffering arose substantially from reasonable action taken, reasonable decisions made or reasonable abstention from a decision or action by his employer.
Note
The following documents must be lodged with the referral:
(tick)
¨ Claim Form and Initial Medical Certificate
¨ Letter to worker under Section 81A¨ Names of medical practitioners who have or are scheduled to examine the worker and date of any future appointments
3 copies of all required documents including this referral must be lodged.
Dated 13 June 2000
(indecipherable)
(Signature of referrer or applicant)
For or on behalf of employer ......………………………... "
On the same day on the letterhead of HIH Casualty and General Insurance Limited, a letter addressed to the worker was written in these terms:
"Dear Ms Wylie,
Worker's Compensation Claim
Employer: The State of Tasmania (Department of Health and Human Services)
We acknowledge receipt of a workers compensation claim form and medical certificate, lodged with your employer on 7 June 2000.
Upon the basis of the information contained within the claim documents submitted, the Department of Health and Human Services are unable to determine whether or not there is an entitlement to compensation. Accordingly, they have commenced further enquiries in relation to the claim and immediately their enquiries have concluded we shall advise their attitude toward liability.
The Department of Health and Human Services are unable to make a decision upon liability within the 14 day period and therefore in accordance with section 81 of the Act liability must be disputed and the matter referred to the Worker's Compensation Commissioner for determination.
The grounds for disputing liability are as follows:
1) That there is insufficient information to substantiate that the workers condition arose out of and in the course of employment and that employment was the most significant contributing factor in the onset of the condition.
2) That the injury the worker may be suffering arose substantially from reasonable action taken, reasonable decisions made or reasonable abstention from a decision or action by his employer.
Following completion of enquiries, if liability is accepted the Department of Health and Human Services shall advise you and inform the Commissioner that they no longer wish to dispute the claim and that therefore the application for a determination upon your entitlement is withdrawn. In that event it will not be necessary for you to appear at any hearing.
Following completion of their enquiries, if liability is disputed, you shall be required to appear before the Commissioner to present your case.
In due course you shall receive advice with respect to the time and date of a hearing before the Commissioner.
If you have any enquiry surrounding this matter please do not hesitate to contact the undersigned.
Yours faithfully
(indecipherable)
Mitchell Chivers
SENIOR CLAIMS OFFICER"
The indecipherable signature attributed to Mitchell Chivers appears to me to be identical to that on the referral.
A third document came into existence on 13 June 2000, namely a letter from Mr Chivers on HIH letterhead addressed to the worker's certifying doctor. It read (formal parts excluded):
"Ms Wylie has lodged a workers compensation [sic] for an acute anxiety related condition. The Department of Health and Human Services have disputed liability in relation to the claim. Can you please review your records in relation to Ms Wylie and provide a report answering the following questions:
1) Your diagnosis and prognosis in relation to this condition?
2) What specific incidents did Ms Wylie describe to you?
3) What non work related factors have contributed to the onset of Ms Wylie acute anxiety condition and what significance have they had in the onset?
4) For what period of time do you anticipate Ms Wylie being totally unfit for work?
5) What action should the employer take to ensure Ms Wylie recovers from the effects of this condition?
I look forward to receiving your report and account. Ms Wylie's medical authority is on the copy of the claim form."
On 17 or 18 July 2000, the employer's reference came before the Commissioner. Counsel announced his appearance "on behalf of the Department of Community and Health Medicine - Department of Health and Human Services or whatever their latest name is". Despite this uncertainty, it is clear that he was claiming to represent the employer. He sought an adjournment and handed up a document signed by a Senior Claims Officer with HIH, Ms Mudaliar, stating the following:
"1 I am employed as a Senior Claims Officer with HIH Insurance, the Fund Manager for the Tasmanian State Service Workers Compensation Scheme. I have carriage of the workers compensation claim file relating to Mrs Joan Wylie.
2 The Worker made a claim for compensation for 'acute anxiety state secondary to stress at work'. The claim form was dated 1 June 2000. The claim form was date-stamped as received by the employer on 6 June 2000 and received by HIH Insurance on 9 June 2000.
3 On the request of the employer, HIH Insurance requested Thomas Whayman & Associates [sic] conduct an investigation into the circumstances leading up to the lodgment of the claim, including taking statements of witnesses. HIH Insurance made this request by facsimile letter to Thomas Whayman & Associates on 14 June 2000.
4 I spoke to Julian Whayman on 17 July 2000, who advised that the investigation was almost complete and he expects to finish his report within the next ten days.
5 I spoke to the Worker after I spoke to Julian Whayman and requested an adjournment of the hearing listed for 18 July pending the receipt of the investigation report. The Worker advised that she would like to consult her solicitor.
6 The Worker telephoned me back and advised that she had spoken to her solicitor and would not consent to an adjournment."
Counsel for the respondent then made this submission to the Commission:
"This is the first occasion upon which the matter has been before the Commission. It's not a simple matter as it is a stress claim and as the statement indicates my client has not yet received a detailed report of the investigation and that investigation was commissioned, in my submission, in timely fashion back on the 14th of June. The employer cannot assist in relation to advancing this matter without that report and of course on receipt of that report it may be that the matter would settle immediately or it may be that it would be defended but no decision can be made, in my submission, and cannot be made until such time as sufficient information is received."
The application was opposed by counsel for the worker, who argued, as I have already noted, that in any event the notice of 13 June addressed to the worker and signed by Mr Chivers did not accord with the requirement in s81A(1)(c) that the employer give the necessary notice. As I say, this submission was upheld. The learned Commissioner referred to the decision of Underwood J in FAI General Insurance Company Limited & Anor v De Saye 23/1992 where, at 7, he said:
"The employer neither made an application nor referred any matter to the commissioner. The application was made by the licensed insurer. Section 81(2) confers on the employer a right to refer 'the matter' to the commissioner, provided the employer has notified the worker in writing that liability to pay compensation by way of weekly payments is disputed and informed the worker of the reasons for disputing that liability. In the present matter the employer did nothing. The licensed insurer notified the worker that there was a dispute and the reasons for it and the licensed insurer referred the matter to the commissioner. The licensed insurer had no statutory status to take either of these steps and consequently, the referral or 'application' was incompetent. See FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd & Ors, Zeeman J No 14/1992 at p7. Of course, the licensed insurer could have exercised rights it may have had under a policy of insurance to take over conduct of a matter in the name of and on behalf of the employer but, this it did not purport to do. If the heading to the transcript of proceedings is correct, the employer did not appear at the hearing at all."
The Commissioner also referred to a later decision of Underwood J in The Freemasons Homes of Tasmania v Price A2/1994 in which his Honour said at 5 - 6:
"There is nothing in the provisions of the Workers Compensation Act 1988 s81A(1)(c) to suggest that the common law rule referred to in R v Justices of Kent (1872-1873) 8 QB 305 should be abrogated in any way. Service of a notice, containing the required information and given on behalf of an employer by a duly authorised agent of an employer that has formed the requisite state of mind, is sufficient compliance with that paragraph of the subsection. In Tasmanian Government Insurance Board & Ors v Priest, Zeeman J A57/1993, a notice pursuant to s86(3) was given by solicitors as agents for the employer. The issue in that case was whether an erroneous description of the name of the employer defeated the validity of the notice. Zeeman J held that it did not and that there was a sufficient notice to satisfy the requirements of s86(3)(a). Insufficiency of notice by reason of the fact it was given by the employer's agent, authorised to do so, and not the employer personally, does not appear to have been even questioned. In De Saye, the notice did not contain the required information viz, that the employer disputed liability, and was given by the insurer as principal and not as agent for the employer.
In a case where the notice is given by the employer's agent and the existence of the employer's state of mind or the agent's authority to give the notice is put in issue, the Commissioner must determine those issues upon such evidence as is put before him."
The learned Commissioner then proceeded:
"The employer bears the onus of proof upon an S81A reference (See GIO Australia Ltd v Lovell [2000] TASSC 75). In this instance the Tribunal has to be satisfied on the evidence that HIH Insurance was the duly authorised agent of the employer for the purpose of providing notice that the employer disputed liability. The relevant evidence before the Tribunal constituted a copy of the notice of dispute, a statement of Ms K V Mudaliar, a Senior Claims Officer with HIH Insurance and the referral to the Tribunal. The statement of Ms Mudaliar expressly states HIH Insurance to be the Fund Manager for The Tasmanian State Service Workers Compensation Scheme. It says that HIH, at the request of the employer, sought an investigation report into the circumstances leading to the worker's claim. However that document makes no reference to the notice of dispute nor in particular to any authority of the employer for HIH Insurance to give that notice on its behalf. The notice of dispute itself does not assert any basis upon which it is written by HIH Insurance. Critically it does not purport to be written pursuant to the employer's authority and on its behalf. The referral document serves only to confuse the issue. Although it's signatory is not identified, the signature is remarkably similar to the signature of the Senior Claims Officer appearing at the foot of the notice of dispute, thus suggestive that the reference was made by HIH Insurance. However, the party making the reference is described as 'We The State of Tasmania (Department of Health and Human Services)' yet this description is contradicted by the employer then stating itself to be 'the employer/authorised agent of the employer' and later wrongly describing itself (and not HIH Insurance) as having given the worker written notice denying liability. Certainly the reference document in my view is incapable of constituting any evidence that the employer had provided HIH Insurance with authority to act pertinent to S81A(1)(c).
The end result is that I have come to the view that there is not any evidence before the Tribunal which is sufficient to permit a finding that HIH Insurance had the authority of the employer as its agent to give notice to the worker disputing her claim. I thus conclude that the letter of HIH Insurance does not comply with the requirements of Section 81A(1)(c) and accordingly, the Tribunal does not have jurisdiction upon the employer's reference. It follows that there will [sic] an order dismissing that reference."
The learned Commissioner rightly relied upon the proposition that where the agent's authority to give the notice is put in issue, the Commissioner must determine that issue upon such evidence as is put before him. It is a question of fact in every case, and as Underwood J observed in yet another appeal under the Act which came before him, viz Ling v Incat Tasmania Pty Ltd [2000] TASSC 87, at par19:
"Appeal to this Court is confined to questions of law. It is not for this Court to review findings of fact made by the Tribunal unless those findings are ones that no tribunal, properly instructed as to the law and acting reasonably, could have made. See Mahony v Industrial Registrar of NSW (1987) 8 NSWLR 1 at 3; Cascade Brewery Pty Ltd & Anor v Chambers 76/1992; Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41."
While the totality of the evidence may well compel a conclusion that HIH was an agent of the employer for certain purposes including the making of appropriate investigations, there was room, in my opinion, for reasonable minds to differ on the crucial question whether or not it had authority to lodge the reference and to give the notice to the worker which it did on 13 June 2000. The letter itself contains cogent evidence from which the inference could be drawn that the employer had not, at that stage, made a decision to dispute liability (an essential precondition in any event to the taking of action under s81A(1) ¾ see GIO Australia Ltd v Lovell (supra) at par4 and 5), for the letter specifically states that upon the basis of the information to hand, the Department of Health and Human Services was "unable to determine whether or not there is an entitlement to compensation" and had commenced to make enquiries at the end of which HIH would advise the Department's "attitude towards liability". There followed a misconception that because the employer was unable to make a decision upon liability within 14 days of receipt of the claim "in accordance with section 81 [sic] of the Act liability must be disputed and the matter referred to the Workers' Compensation Commissioner for determination". The ability of an employer who has insufficient information to make a decision on liability to defer making it under s81AA was not adverted to. Nowhere in Ms Mudaliar's statement is it claimed that HIH had instructions to refer the matter to the Tribunal and to give notice of dispute to the worker. All she claimed to have been instructed by the employer to do was to engage Thomas Whayman and Associates to conduct an investigation. The distinct possibility is open that HIH, without realising that the deferral option was available to enable a decision to be made after proper investigation, attempted to protect the employer's position by purporting to dispute liability when the employer had neither decided to do so itself nor authorised HIH to do so on its behalf. In the light of the material before the learned Commissioner, it cannot be said that, properly instructed as to the law and acting reasonably, he could not have reached the conclusion he did. His decision was not erroneous and the appeal must be dismissed.
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