Swan v Miller

[2001] TASSC 15

[2001] TASSC 15

CITATION:                 Swan v Miller [2001] TASSC 15

PARTIES:  SWAN, Kim
  v
  MILLER, Jim

(t/as STATEWIDE REFRIGERATED TRANSPORT)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 110/2000
DELIVERED ON:  27 February 2001
DELIVERED AT:  Hobart
HEARING DATES:  21 February 2001
JUDGMENT OF:  Blow J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - Claim for compensation - Medical certificates not amounting to fresh claims.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss81, 81A.
Tubemakers of Australia Ltd v Kurz 4/1998; G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308; State of Tasmania v Cook (1999) 9 Tas R 191; Pataki v University of Tasmania [2000] TASSC 144, referred to.
Aust Dig Workers Compensation [143]

REPRESENTATION:

Counsel:
             Appellant:  R M Grueber
             Respondent:  S B Carter
Solicitors:
             Appellant:  Jennings Elliott
             Respondent:  Page Seager

Judgment Number:  [2001] TASSC 15
Number of Paragraphs:  20

Serial No 15/2001
File No LCA 110/2000

KIM SWAN v JIM MILLER (t/as STATEWIDE REFRIGERATED TRANSPORT)

REASONS FOR JUDGMENT  BLOW J

27 February 2001

1. This is an appeal from orders made on 20 November 2000 by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), constituted by its Chief Commissioner.  By those orders, the learned Chief Commissioner dismissed two purported references to the Tribunal.  I understand the appellant to contend that the effect of those orders was to refuse to treat the respondent, his employer, as liable to continue to make weekly payments of compensation to him for the whole of the months of September and October 2000.

1. The appellant initially claimed weekly payments of compensation by means of a written claim pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s32(1)(b), dated 31 July 1997. The claim related to an injury on 24 July 1997 when the appellant strained his back whilst lifting meat. Payments of compensation were made as a result of that claim. Further medical certificates were submitted by the appellant during March 2000 and referred, pursuant to the Act, s81A(1), to the Tribunal, which made orders on 3 May 2000 determining that a genuine dispute existed with regard to the respondent's liability to pay compensation, thereby relieving the respondent of any immediate obligation to make payments. The certificates of March 2000 and the related referrals and orders are of no real significance in this appeal, but I mention them by way of background.

1. Subsequently, medical certificates were submitted by or on behalf of the appellant in relation to an onset of symptoms said to have occurred on 17 May 2000. The appellant's general practitioner, Dr Klonaris, signed two certificates, between them covering the period from 18 May 2000 to 31 May 2000 inclusive, stating that the appellant was incapacitated for work as a result of a recurrence and aggravation of his previous condition stated to have been caused by symptoms which commenced on 17 May 2000. The respondent, or his insurer's solicitors as his agents, referred the matter to the Tribunal pursuant to s81A, annexing both certificates to the referral document. Dr Klonaris provided a further certificate dated 31 May 2000 certifying incapacity for the period 1 June 2000 to 10 June 2000. The solicitors purported to refer the matter to the Tribunal again, annexing that certificate to the purported referral. On 18 July 2000, by two separate orders, one in relation to the first referral and one in relation to the purported second referral, a Commissioner made two determinations that a genuine dispute existed and ordered that compensation was not to be paid. Two further certificates by Dr Klonaris were submitted, stating that the appellant was incapacitated for the period from 11 June 2000 to 31 July 2000 on the same basis. Again, these were purportedly referred to the Tribunal pursuant to s81A. On 15 August 2000, the learned Chief Commissioner purported to make two orders in respect of these certificates determining that a genuine dispute existed. In the light of the judgment of Cox CJ in Pataki v University of Tasmania [2000] TASSC 144, it is clear that it was inappropriate for the respondent to refer to the Tribunal any of this series of certificates by Dr Klonaris other than the first one that related to the onset of symptoms on 17 May 2000. An order in respect of that certificate determining that a genuine dispute existed was sufficient to relieve the respondent from any obligation to pay compensation in respect of periods of alleged incapacity covered by later medical certificates submitted on the basis of substantially the same factual allegations.

1. The next certificate issued by Dr Klonaris was dated 31 July 2000. It stated that the appellant would be incapacitated for work from 31 July 2000 to 31 August 2000. It was a continuing certificate and showed the basis of the doctor's opinion to be the same as for the series of certificates covering the period from 18 May 2000 onwards. Once again the respondent purported to refer the matter to the Tribunal pursuant to s81A. This time, the respondent omitted to comply with the time limits specified by s81A. That non-compliance came to the attention of the solicitors for the parties. The solicitor for the respondent conceded that a determination that a genuine dispute existed, relieving the respondent from immediate liability to make weekly payments, could not be made. On the basis of that concession, the learned Chief Commissioner purported to make an order on 2 October 2000 that the respondent:

"(a)make weekly payments to the worker in accordance with the Act for the period the subject of this referral; and

(b)pay the cost of those benefits claimed by this referral to be payable under Division 2 of Part VI in respect of the injury suffered by the worker."

1. The respondent contends that the medical certificate that formed the basis of that order did not constitute a "claim for compensation" for the purposes of s81, that the Tribunal therefore had no jurisdiction to make that order, that it is a nullity, and that it should be ignored when determining what the rights of the parties are. The appellant contends that the order is not a nullity, and that after its making the respondent ceased to be entitled to the benefit of the earlier order or orders determining that a genuine dispute existed in respect of the claim based on an onset of symptoms said to have occurred on 17 May 2000. The appellant further contends that, as a result of the making of the order for payment of compensation, the respondent was precluded from stopping the weekly payments of compensation so long as the appellant continued to submit medical certificates, without any interruption in time, certifying the continuance of the same incapacity with substantially the same cause. I have come to the view that the status and effect of the order for compensation payments are not of critical significance in this appeal, but will nevertheless deal with the arguments concerning them.

1. The respondent has not sought to impeach the order for the payment of compensation directly by way of statutory appeal, application for a prerogative writ, or otherwise.  However, it remains open for him to mount a collateral attack on its validity in these proceedings: Ousley v R (1997) 192 CLR 69 at 79 - 80, 86 - 87, 100 - 105, 125 - 127, 144 - 146; Attorney-General v Breckler (1999) 197 CLR 83 at 108, 130 - 132. That order was not the product of an enforceable contract, since it involved a capitulation by the respondent, rather than a compromise. No estoppel arises as a result of its making, since there is no suggestion that the respondent made any promise or representation, nor that the appellant acted in any way to his detriment. No question of waiver arises, since the respondent accepted that it had become subject to a legal liability, rather than abandoning a legal right. The only questions are whether the Tribunal had the power to make the order and, if not, what status it has, if any.

1. Central to the respondent's argument is the contention that the medical certificate dated 31 July 2000 was not a "claim for compensation" within the meaning of s81. It is appropriate to summarise the relevant legislative provisions in order to explain the context of s81. Under s34, the initial claim for compensation in respect of an injury (and that term includes a disease) is required to be made in an approved form and accompanied by a medical certificate in an approved form. By s81(1), an employer is obliged to commence making weekly payments when he, she or it has received a "claim for compensation", which can be a claim subsequent to the initial claim. Under s81(3)(b), there is an exception to that requirement if the employer has disputed liability to pay compensation in accordance with s81A. That section provides that an employer who disputes liability must, within 14 days of receiving the claim for compensation, serve the worker with a written notice disputing liability, and refer the matter to the Tribunal. When those steps are taken, if the Tribunal considers that a genuine dispute exists, it must order that weekly compensation and benefits are not to be paid: s81A(3)(c) and (d). It is then up to the worker to refer the matter to the Tribunal pursuant to s42 if he or she wishes to proceed.

1. Some sloppy drafting in the Act has caused problems. The term "claim for compensation" means different things in different sections. In s34, it refers only to an initial claim for compensation: Harris v TSS Pty Ltd 46/1992, Underwood J. In ss81 and 81A, it means something else. It plainly refers only to claims for weekly payments, as distinct from claims for lump sums or for the payment of medical expenses. See Freemasons Homes of Southern Tasmania v Greenwood (1996) 5 Tas R 445 at 455 - 456. The term includes a new claim for weekly payments when the initial claim did not seek weekly payments. It also includes a claim for the restoration of weekly payments when earlier payments have been lawfully terminated under s86, or have lawfully ceased upon the expiry of a medical certificate not succeeded by a fresh one. See G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308 per Cox CJ at 320. It includes a claim for a continuation of weekly payments upon a substantially new basis: State of Tasmania v Cook (1999) 9 Tas R 191. It does not include an implied request for the continuation of weekly payments without interruption, and without any substantial change to the basis upon which they are claimed, made by the routine submission of a medical certificate: Pataki v University of Tasmania (supra). 

1. As I have said, the medical certificate dated 31 July 2000 stated that the appellant would be incapacitated for work from that date until 31 August 2000.  A series of previous certificates had been submitted covering the period from 18 May 2000 to 31 July 2000 inclusive.  There was no gap in the certification of incapacity.

1. The medical certificate dated 18 May 2000 showed a provisional diagnosis of "Back pain (lumbosacral spine)".  As to the appellant's presenting symptoms, it read "Woke up early morning in pain ¾4am.  Previous day noticed niggling in back when pulling pallet."  It said the appellant stated the condition to have been caused by an incident which occurred on 17 May 2000.  It said he stated that the injury or disease occurred under the following circumstances: "(1) Has spondylolisthesis; (2) Manual work too severe for his back; (3) Degenerative changes may be playing role in continuing symptoms".  It showed that the injury or disease was a recurrence of a previously compensable condition, and an aggravation of an existing condition.  The subsequent certificates dated 23 May 2000, 31 May 2000 and 13 June 2000, did not suggest any new or additional reason for the appellant's stated incapacity for work.  The certificate dated 5 July 2000 contained the following comment:

"I feel he should be 'at work' on basis of psychological well being ¾ ie this dispute is exaggerating his symptoms.  Worthwhile considering light sedetary [sic] job (not restricted to just sitting but able to get up), could be trialled if available for 1 - 2 hours per day."

In all other respects, it showed that the appellant was incapacitated for work with presenting symptoms as before as a result of his back condition.  The next certificate was the one dated 31 July 2000 which led to the order for the payment of compensation.  It was substantially similar to the previous certificate in the chain, except in two respects.  Firstly, as to the provisional medical diagnosis, the doctor wrote "ongoing back pain ¾ unable to cope with work".  The latter comment was entirely ambiguous as to whether the inability to cope with work was the result of the appellant's physical condition, his mental state, or a combination of the two.  Secondly, the doctor commented, "psychologically would be better off at work with suitable part time employment".  In subsequent certificates in the chain dated 1 September 2000 and 29 September 2000, Dr Klonaris stated two provisional diagnoses: ongoing back pain and depression secondary to "chronic pain & situation" or "chronic pain & current situation". 

1. It is not uncommon for physically incapacitated workers to develop psychological disorders which in themselves become incapacitating, and sometimes eventually the sole reason for a worker's incapacity.  When a medical certificate shows the original physical condition and a new psychological condition as concurrent diagnoses, the employer will only be able to terminate or reduce the weekly payments by proceeding under s86 or s88: Tubemakers of Australia Ltd v Kurz 4/1998 Crawford J; State of Tasmania v Cook (supra) at pars16 - 18. In that situation the medical certificate does not amount to a "claim for compensation" for the purposes of s81, and thus cannot be referred to the Tribunal under s81A. The situation in State of Tasmania v Cook was different. Earlier medical certificates had related to a back condition, but a certificate was submitted stating provisional diagnoses as "Acute adjustment disorder. Work related stress 'depression' plus symptoms as per previous certificates". It was open to the Tribunal on the facts of that case to conclude that the worker was claiming weekly payments on a substantially new basis, and that the certificate therefore constituted a "claim for compensation" within the meaning of ss81 and 81A. Whether the terms of a medical certificate are such that, when submitted to the employer or insurer, it amounts to a new claim, or whether its terms are sufficiently similar to those of previous certificates for no new claim to arise, involves a question of degree. The result that is thus produced by the wording of the Act is most unsatisfactory, since from time to time medical certificates hastily scribbled by busy general practitioners will need to be scrutinised at great length and at great expense by lawyers, commissioners and judges, all of them looking for matters of significance much as witchdoctors might do when scrutinising the entrails of deceased poultry.

1. However, the question of the status of the certificate of 31 July 2000 in this case is not one of great difficulty.  It referred only obliquely to psychological matters, and on any view did not elevate the significance of any psychological condition any higher than that referred to in the certificate considered by Crawford J in Tubemakers. It follows that the submission of the certificate of 31 July 2000 did not assert an entitlement to compensation on a substantially new basis, did not amount to a "claim for compensation" for the purposes of ss81 and 81A, and did not result in the Tribunal having any jurisdiction to make the order for the payment of compensation.

1. When a superior court of record makes an order that it has no jurisdiction to make, that order may not be treated as a nullity: Sanders v Sanders (1967) 116 CLR 366 at 376. However, the Tribunal is not a court. The learned Chief Commissioner was a decision-maker who purported to exercise a statutory power that he did not have. His decision was ultra vires and invalid.  Different courts have taken different views as what does or does not amount to a nullity, and even as to whether there is such a thing as a nullity: Aronson and Dwyer, Judicial Review of Administrative Action, 2 ed, 494 - 501.  I need not get involved in that philosophical debate.  I think it follows from the fact that the learned Chief Commissioner lacked jurisdiction that the order he made or purported to make should be disregarded for the purpose of determining the rights of the parties in relation to the payment of weekly compensation for periods subsequent to the period covered thereby.  The respondent thus continued to have the benefit of the first order of 18 July 2000 determining that a genuine dispute existed.

1. The next medical certificate after that of 31 July 2000 was one signed by Dr Klonaris and dated 1 September 2000. It certified that the appellant would be incapacitated for work from that day until 30 September 2000. This was the first of the two certificates that referred not only to ongoing back pain, but also to depression secondary to that pain and to the appellant's situation. It did not amount to a "claim for compensation" for the purposes of ss81 and 81A, being indistinguishable from the certificate in Tubemakers. But the respondent purported to refer it to the Tribunal pursuant to s81. The next certificate was dated 29 September 2000, covered the period from 1 October 2000 to 31 October 2000 inclusive, and was in similar form. Again, the respondent purported to refer it to the Tribunal pursuant to s81A. The learned Chief Commissioner made two orders on 20 November 2000 dismissing these two purported references. Those are the orders that the appellant has appealed from. The essential basis upon which the learned Chief Commissioner dismissed the two purported references appears in the following passage in par11 of his reasons:

"… the issue as to the worker's entitlement to compensation in respect of the aggravation and/or exacerbation of his condition by an incident on 17 May 2000 has been established as a disputed claim by the order of the Tribunal dated 18 July 2000. Subsequent medical certificates have merely maintained that claim, and they are not required to be referred to the Tribunal in accordance with s81A as a dispute in relation to that claim has already been established."

1. The learned Chief Commissioner could have gone further than saying that the two medical certificates in question were "not required to be referred to the Tribunal in accordance with s81A". He could have said that they were unable to be referred to the Tribunal in accordance with that section because they were not claims for compensation for its purposes. The only appropriate course was to dismiss the purported references. That is what he did. He did not thereby err in law.

1. In par12 of his reasons, the learned Chief Commissioner said, in effect, that if he was wrong as to his conclusion in par11, then the additional diagnosis of depression in the two relevant certificates would be sufficient for the respondent to treat them as claims for compensation for the purposes of s81A. That comment was no more than a comment, and it was incorrect. The additional diagnosis of depression involved no greater change than that considered in Tubemakers, and did not result in there being any new claim for compensation. Furthermore, an employer does not have any choice as to whether to treat a certificate as a claim for compensation for the purposes of s81A. It is either such a claim or it is not. The choice that the employer has is whether to refer the claim to the Tribunal under s81A or not. However, the learned Chief Commissioner's errors in par12 have no bearing on the order that he made, nor on the outcome of this appeal.

1. In a situation like this, when a litigant purports to appeal from a decision that was made by a person who had no jurisdiction, questions sometimes arise as to whether a right of appeal existed.  It is sometimes argued that there is no right of appeal from a nullity, since there is nothing to appeal from.  Whether an invalid decision may be challenged by way of a statutory appeal depends on the wording of the statute creating the right of appeal: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. The words of the Act, s63(1), by which the right of appeal is created, are very wide. The subsection reads:

"(1)  If any party to a proceeding before the Tribunal is aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law, that party may appeal to the Supreme Court."

1. It would be absurd to hold that a determination, order, ruling or direction, if made or purportedly made without jurisdiction, could only be challenged by proceedings for a prerogative writ or a declaration.  I therefore conclude that this appeal was competent, but that the only proper course is for me to dismiss it.

1. However it does not follow that the appellant is not entitled to the continuation of weekly payments.  If the respondent in fact made payments of compensation as a result of a mistaken reliance on the order of 2 October 2000, it would only have been lawful for him to terminate them if one of the paragraphs of s86(1) applied, or if termination of the payments was authorised by a determination of the Tribunal under s88(2)(a).  If, as I suspect, none of those provisions were applicable, it may be that the respondent was obliged to continue making weekly payments.  However this appeal does not raise that issue.

1. The appeal is dismissed.