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

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.

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.

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.…

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.

Continue reading Swan v Miller

Details

AGLC: Swan v Miller [2001] TASSC 15
Case: [2001] TASSC 15
Decision Date: 27 February 2001

CaseChat Overview and Summary

The appeal in Swan v Miller was brought by Kim Swan, the appellant, against Jim Miller, trading as Statewide Refrigerated Transport, the respondent. The dispute centered on claims for workers' compensation following an injury sustained by Swan on 24 July 1997, when he strained his back while lifting meat. Swan sought weekly payments of compensation under the Workers Rehabilitation and Compensation Act 1988. The central legal issue in this case was whether the medical certificates submitted by Swan constituted fresh claims for compensation, thereby triggering the respondent's obligation to pay weekly compensation. The respondent argued that these certificates did not amount to new claims and, therefore, the Tribunal did not have jurisdiction to order the payment of compensation.

The Supreme Court of Tasmania, in dismissing the appeal, held that the medical certificates submitted by Swan did not constitute fresh claims for compensation under the Act. The court emphasized that a new claim for compensation under the Act requires a substantial change in the basis upon which the claim is made. The certificates in question were merely extensions of the original claim, continuing the same incapacity without any substantial change in the basis for the claim. Consequently, the court concluded that the Tribunal had no jurisdiction to make the order for payment of compensation. The order made by the Tribunal was deemed ultra vires and invalid, but it did not render the earlier order determining a genuine dispute null and void. The appeal was dismissed, but the court left open the question of whether the respondent was legally obliged to continue making weekly payments based on the invalid order.

The final orders of the court were that the appeal was dismissed, and the orders made by the Tribunal on 20 November 2000 were affirmed. This decision underscored the importance of the distinction between a genuine new claim for compensation and a continuation of an existing claim in the context of workers' compensation proceedings.

Orders