Thornton v Apollo Nominees Pty Ltd
[2003] TASSC 134
•11 December 2003
[2003] TASSC 134
CITATION: Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134
PARTIES: THORNTON, Peter Marcus
v
APPOLLO NOMINEES PTY LTD (ACN 009 512 225)
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 100/2002
DELIVERED ON: 11 December 2003
DELIVERED AT: Hobart
HEARING DATES: 26 August 2003
JUDGMENT OF: Underwood, Crawford and Blow JJ
CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Determination of claims – Jurisdiction and powers of Tribunals, Boards, Commissioners, etc – Tasmania – Acceptance of claim for weekly compensation based on the suffering of a physical injury – Claim for continuation of weekly compensation based partly on depression said to result from original injury – Whether a claim "in respect of an injury for which the worker had not previously made a claim" – Jurisdiction of Tribunal to determine referral by employer.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss80A, 81A(1).
FAI General Insurance v Morrisson (1993) 2 Tas R 9; Electrolytic Zinc Company of Australasia Ltd v Maister [1990] Tas R 91; State of Tasmania v Parsons [2002] TASSC 59, applied.
State of Tasmania v Cook (2000) 9 Tas R 191; Swan v Miller [2001] TASSC 15; State of Tasmania v West [2001] TASSC 62, distinguished.
Aust Dig Workers Compensation [143]
REPRESENTATION:
Counsel:
Appellant: R J Phillips
Respondent: M K Wilkins
Solicitors:
Appellant: Phillips Taglieri
Respondent: Page Seager
Judgment Number: [2003] TASSC 134
Number of Paragraphs: 45
Serial No 134/2003
File No FCA 100/2002
PETER MARCUS THORNTON
v APOLLO NOMINEES PTY LTD (ACN 009 512 225)
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
BLOW J
11 December 2003
Orders of the Court
Appeal upheld.
Order on the first appeal made on 12 November 2002 quashed.
Appeal from the Workers Rehabilitation and Compensation Tribunal filed on 16 September 2002 dismissed.
Serial No 134/2003
File No FCA 100/2002
PETER MARCUS THORNTON
v APOLLO NOMINEES PTY LTD (ACN 009 512 225)
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
11 December 2003
I agree with the orders proposed by Crawford J, and with his Honour's reasons.
File No FCA 100/2002
PETER MARCUS THORNTON
v APOLLO NOMINEES PTY LTD (ACN 009 512 225)
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
11 December 2003
On 21 December 2000, the appellant suffered injuries in the course of his employment by the respondent at the premises of Doric Engineering at Quoiba. He fell into a wheelabrator, which is in the nature of a conveyor belt apparatus. He claimed and was paid workers compensation, including weekly compensation.
In his initial report to the respondent on a printed form, he stated that he crushed his legs. In answer to a question asking "what was the most serious type(s) of injury or disease caused by the occurrence", he wrote "burn –grazes to calfs [sic] crushed knees". He stated that his treating doctor was Dr Ian Hoyle.
The appellant was totally incapacitated for work by reason of his injuries. In support of his entitlement to weekly compensation, he submitted a number of medical certificates. The six certificates in evidence were all printed forms filled in by or for Dr Hoyle, who signed them. Counsel stated to the Court that the certificates were in a form approved by the WorkCover Tasmania Board for the purposes of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s69(1).
Produced to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") were medical certificates signed by Dr Hoyle and dated 22 December 2000 and 4 March, 8 April, 25 April, 27 May and 4 July 2002. It is the last of those certificates that is central to the issues between the parties. The initial certificate stated the presenting symptom to be pain and the provisional diagnosis to be friction burns and soft tissue injuries to the legs. In a section of the form that asked what the appellant had said caused the condition, it was stated that it was an incident that occurred on 21 December 2000. In the next section that asked what the appellant had said as to the circumstances of the occurrence of the injury, it was stated "crushed by a roller". Presumably that was a reference to a roller of the wheelabrator. In the section after that, which asked whether the injury was consistent or inconsistent with the stated cause, it was indicated that it was consistent.
On each of the other five certificates produced to the Tribunal, Dr Hoyle indicated that it was a continuing certificate and not an initial or final/clearance certificate. Because of that indication, the forms did not require Dr Hoyle to complete the sections that asked what the appellant had said as to the circumstances of the occurrence of the injury and whether the injury was consistent with the stated cause, and Dr Hoyle did not do so.
The last four medical certificates collectively certified that the appellant was incapacitated for work from 9 April 2002 until 5 August 2002. Those dated 8 April, 25 April and 27 May 2002, stated the presenting symptoms to be "bilateral knee pain" and the medical diagnosis to be "crush injuries to the legs and knees", and collectively certified the appellant's incapacity throughout the period from 9 April to 4 July 2002. He was paid weekly compensation for that period. In regard to the symptoms and medical diagnosis, there was a change, for the first time, in the certificate dated 4 July 2002. It described the presenting symptoms to be bilateral knee pain, depressed mood and poor memory, and the medical diagnosis to be a crush injury to the legs and a depressed mood. It continued the certification of the incapacity of the appellant for work, expressing it to be for the period 2 July to 5 August 2002. Like the preceding certificates, it stated that it was a continuing one, rather than an initial or final/clearance certificate.
The appellant provided the certificate of 4 July 2002 to the respondent within 14 days of the expiry of the period of incapacitation specified in the immediately preceding certificate (31 May to 4 July 2002). See the Act, s69(13). The respondent thereupon served on the appellant a notice disputing liability to pay compensation. The notice stated that his workers compensation claim was "in respect of an injury, namely 'burn –grazes to calves and crushed knee' which was first noticed or identified on 21 December 2000". The notice then continued:
"By this letter we provide you with notice that your employer disputes liability to pay compensation by way of weekly payments, or any benefits payable under Division 2 of Part VI of the Workers' Rehabilitation & Compensation Act 1988 in respect of your injury.
Your employer's reasons for disputing liability are as follows:-
(1)Your claim for compensation by way of a medical certificate dated 4 July 2002 does not substantially relate to the injury that you sustained arising out of and in the course of your employment on 21 December 2000;
(2)Your incapacity is as a result, mainly or in part, of depression and memory deficiency which are not as a result of your claim dated 9 January 2001 and are claims for compensation which have not previously been made."
Counsel for the respondent said that at the time of the hearing of the appeal before this Court, weekly payments were still being made to the appellant and the respondent conceded that he was entitled to continue to receive them because of his continuing incapacitation by reason of his knee injuries. However, counsel explained that the respondent did not accept that it was liable to pay compensation arising out of depression suffered by the appellant. He said for that reason, liability was disputed. He explained further that should the appellant recover from the incapacitating physical effects of the knee injuries to the extent that he is no longer incapacitated by them, the respondent did not wish to be treated as having admitted liability to continue to pay compensation because of any depression suffered by him.
The respondent purported to refer the matter to the Tribunal pursuant to s81A(1)(c). On 8 August 2002, a hearing was conducted before the Chief Commissioner. On 30 August 2002, the Tribunal published reasons for determining, as follows:
"I am therefore not satisfied that based upon the applicable law prior to 1 July 2001, the employer was entitled to treat the disputed medical certificate as a claim for compensation for the purposes of Section 81A. The Tribunal is therefore without jurisdiction and the referral will be dismissed."
The Chief Commissioner erred when he based his determination on the law that applied prior to 1 July 2001. To explain how he came to do so, it is necessary to deal first with some of the background to the legislative changes that took effect on that date.
Although it has subsequently been amended, the purpose of s81A, since it was first inserted into the Act in 1992, has been to ensure that if an employer wishes to dispute liability to pay weekly compensation or compensation for medical and other services, it must serve on the worker a notice of the dispute, giving reasons, and refer the matter to the Tribunal, within a specified number of days of receiving the claim for compensation in respect of the injury to the worker. The prescribed period was 14 days until the amendment effected by Act 99 of 2000 changed it to 28 days. If the employer does not so act within the prescribed period, it is deemed, by virtue of s81AB, to have accepted liability in respect of the claim.
Of course, it has never been the effect of a failure to dispute a claim for weekly compensation or the effect of a determination by the Tribunal, that once liable to pay weekly compensation, an employer will at all times be obliged to continue making the payments. There are many provisions in the Act that can lead to a right to stop payments. In the respondent's written submissions, 12 circumstances are detailed as probably being capable of leading to payments being stopped. Examples are where the existence of an incapacity for work is not supported by a medical certificate under s69(1), Pasminco Australia Ltd v Simmons A50/1993; where payments may be terminated by operation of law pursuant to s86(1)(a) or (e) or on notice to the worker under s86(1)(b), (c) or (d); where the Tribunal makes a determination on an application to review weekly payments under s88; and where the Tribunal makes an order on a referral by the employer under s81A(5).
There is certainly no doubt that an employer may use the provisions of s81A(1) to dispute the first claim for compensation that is made by a worker with respect to the suffering of a particular injury. I am referring to the initial claim that is governed by ss32 and 34. Such claims must be made in a form approved by the WorkCover Board and must be accompanied by a certificate in a form approved by the Board, signed by an accredited medical practitioner or accredited person. See s34(1). Once such an initial claim has been made in conformity with s34 and the other provisions of PtIV, consequent upon the suffering of an injury arising out of and in the course of the employment within the meaning of s25(1), there is no need thereafter for the worker to comply with s34 and the other provisions of PtIV whenever he or she claims compensation payable as a result of suffering that injury. Harris v TSS Pty Ltd 46/1992 at 6; Chorley v Hazell Pty Ltd A17/1993 at 4; Swan v Miller [2001] TASSC 15 at 3; State of Tasmania v Parsons [2002] TASSC 59 at pars25, 61.
Until G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308, it was understood by many of those involved in the workers compensation area that when in the Act, PtVII, which includes s81A, reference was made to a claim for compensation, it was a reference to the initial claim in respect of an injury and not to matters or questions that arose in connection with or incidental to such a claim, such as the making of a claim for the continuation of weekly compensation accompanied by the presentation of a medical certificate under s69. It is well known that some consternation arose as a consequence of G L & V N Barber Pty Ltd v Ryan, because of what was expressed by Cox CJ at 313 – 320, that the presentation of a fresh medical certificate of incapacity after a break in the continuity of certification to that effect, amounted to a further claim for compensation which attracted the provisions of PtVII and which could be disputed by the employer using the provisions of s81A(1). That was confirmed by the Full Court in the subsequent case of State of Tasmania v Parsons (supra).
However, the law was substantially altered with the commencement on 1 July 2001 of the Workers Rehabilitation and Compensation Amendment Act 2000. Relevantly for this case, it made the following amendments to the Act. Section 69(13) was inserted, stating that if the period specified in a medical certificate provided by a worker under the section expires, and the worker provides a further certificate more than 14 days after the expiration of that period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which s81A applies. The other amendment to which I refer inserted s80A into the Act. It provides that for the purposes of PtVII, Div1, which contains ss80A to 90, including ss81A and 81AB, "a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer".
By virtue of the transitional provisions inserted by the Workers Rehabilitation and Compensation Amendment Act 2000, s81, into the Act as Sch10, and particularly cl 10(3), the amendments to which I have just referred apply in the circumstances of this case. Clause 10 is in the following terms:
"10 — (1) Subject to subclause (3), all claims for compensation and claims for damages made against an employer independently of this Act in respect of an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined in accordance with this Act as in force immediately before that day.
(2) For the purposes of this clause, a claim for compensation includes any subsequent claim arising from the injury in respect of which the claim for compensation was made.
(3) The amendments to this Act made by sections 35(b), 40, 41, 42, 49, 54, 55 and 57 of the Workers Rehabilitation and Compensation Amendment Act 2000 apply to all claims for compensation not finally determined before the commencement day."
The appellant's injury on 21 December 2000 was suffered by him before the commencement day, which was on 1 July 2001, and his claim for compensation in respect of that injury had not been finally determined before that date. By subcl(1), his claims for compensation in respect of that injury, subject to subcl(3), were to be continued and determined in accordance with the Act as in force immediately before that date. Subclause (2) makes that clear. However, subcl(3) contains exceptions that operate for this case. Sections 69(13) and 80A were inserted into the Act by ss35(b) and 49 respectively of the amending Act, with the result that the inserted provisions do apply to the appellant's claim for compensation in respect of his injury. I note that it has always been his case that his claim is founded on the injury he suffered on 21 December 2000.
At first instance, the Chief Commissioner referred only to subcls(1) and (2) of cl 10 and as a result, erroneously concluded that the law prior to 1 July 2001 applied to the case. He should have determined instead, upon the basis of subcl(3), that for the purpose of determining the issues before him, the applicable law was that in operation on and after 1 July 2001, that s80A applied to the case and that s69(13) was also in operation and might assist the proper interpretation of s80A and the other provisions of PtVII.
A question that should have been considered by the Chief Commissioner, but because of his error was not, was whether the respondent's purported referral pursuant to s81A(1)(c), concerned a claim for compensation that was "a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer", within the meaning of those words in s80A. If it was such a claim, the respondent was entitled to dispute liability by using s81A(1). If it was not such a claim, the respondent had no such entitlement. For the purposes of the appeal, the answer to the question depends on the meaning of "injury" in s80A and the other sections in PtVII, Div1.
It is the appellant's case that the incapacity for work that was certified to exist in the medical certificate dated 4 July 2002, resulted from the injury suffered by him on 21 December 2000. It is also his case that his depressed mood that was referred to in that certificate, also resulted from the injury suffered by him on 21 December 2000. Counsel for the appellant submitted that the word "injury" in s80A is used in the sense of the general condition of compensable impairment that is founded on the original suffering of an injury that is required by s25 before an employer will be liable to the worker for compensation and which, in this case, was the suffering of the injury by the appellant on 21 December 2000. Counsel for the appellant submitted that the first claim for weekly compensation that was made by the appellant in about January 2001, was the only one that could be disputed under s81A(1), having regard to the amendments that were made to the Act, and that is so, notwithstanding that subsequently an incapacitating medical condition of a different kind, such as depression, may have been claimed to have developed as a result of the original injury that was suffered.
On the other hand, counsel for the respondent submitted that the word "injury" in s80A refers to any medical condition other than the one upon which the original claim was based. Therefore, in the circumstances of this case, it was submitted by the respondent's counsel that once the appellant raised for the first time in support of his claim for the continuation of weekly compensation that he was suffering from a depressed mood, whether or not as a result of or in addition to the crush injuries to his legs, he was making a claim for compensation in respect of an injury for which he had not previously made a claim. Therefore, it was submitted, it must follow that the respondent was entitled to dispute liability to pay weekly compensation for the depressed mood under s81A(1). It was further submitted that if it did not do so, the respondent would be taken to have accepted liability in respect of the claim for weekly compensation based on the depressed mood, because of the provisions of s81AB, and that in the event that the appellant becomes no longer incapacitated by the physical results of the knee injuries, the respondent will not be able to dispute liability to continue paying compensation so long as the depressed mood continues to be claimed as a basis for the continuation of weekly payments.
I have no doubt that it was the intention of Parliament when inserting ss69(13) and 80A into the Act, to largely overcome problems it was perceived had been brought about by G L & V N Barber Pty Ltd v Ryan (supra). The second reading speech of the Minister for Infrastructure, Energy and Resources in support of the Bill to amend the Act, supports such an intention on the part of Parliament. See Acts Interpretation Act, s8B(3)(f). The Minister said:
"Finally, Mr Speaker, the bill includes two amendments to address problems arising from a decision of the Supreme Court in Barber v Ryan. I do not intend going into detail about this decision except to say that it has led to a substantial increase in the number of claims referred to the tribunal. These amendments are aimed at clarifying an employer's right to dispute liability and will assist in reducing the workload on the tribunal."
In other words, the purpose of the relevant amendments was to limit the disputes that could be raised by way of referral under s81A(1), to the first of such claims made following and arising out of the suffering of an injury, save in a situation for which s69(13) provides.
The appellant also sought to rely on clause notes that were made available to parliamentarians, for the purpose of the Court ascertaining the intention of Parliament. On 3 December, following the hearing of the appeal, written submissions from the parties about the matter were received by the Court. The Court was asked to determine whether it should have regard to the notes upon the factual basis stated by the Deputy Premier and Minister for Economic Development, Energy and Resources in correspondence to the appellant's solicitors. That basis is:
1It is the usual practice of the Parliamentary Liaison Officer to provide copies of a Bill and clause notes to the Leader of the Green Opposition, the Leader of the Liberal Opposition, the Leader of the Government in the Legislative Council and the Whips for each of the parties in the House of Assembly.
2It is the usual practice of the Leader of the Liberal Opposition to pass those documents to the Shadow Minister dealing with the legislation.
3In the case of the Workers Rehabilitation and Compensation Bill 2000 (the Bill for the amending Act), the Bill and the clause notes which the appellant seeks to have the Court take regard to assist the interpretation of the Act, were provided to the abovementioned members of Parliament.
I infer that the Bill and clause notes were provided to those members of Parliament before the Bill was enacted.
The Acts Interpretation Act, s8B(1), provides that subject to subs(2), in the interpretation of a provision of an Act consideration may be given to extrinsic material capable of assisting in the interpretation in certain circumstances. The expression "extrinsic material" is defined in subs(3)(e) as including "any explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, either House of Parliament by the member bringing in the Bill before the provision was enacted".
In my opinion the facts do not establish that the clause notes in question were laid before, or given to the members of, either House by the member bringing in the Bill. All they establish is that the notes were provided by the Parliamentary Liaison Officer to five members of the House of Assembly and one member of the Legislative Council and that one other member of the House of Assembly received them. The notes could not amount to "extrinsic material" within the meaning of that expression in subs(3)(e), unless they were laid before either House or given to all members of a House by the member bringing in the Bill. It is obvious that the meaning of the expression requires that the notes had to be provided to all members of a House before they may assist interpretation. If they were not, they could not be used as an indication of the collective intention of the members when they passed the Bill. For these reasons, the Court should not have regard to the clause notes.
If the meaning of "injury" as advanced by the respondent's counsel was to be accepted, I can imagine a chaotic situation arising from many cases, involving the frequent litigating of the question whether a worker's most recent claim raised for the first time a new form of medical condition not previously raised by a claim arising out of the suffering of the same injury. When a worker suffers an accident at work, the injuries that follow can be numerous. Not all of them may be identified at first. Some of them may be compendiously referred to as an "injured leg", whereas they may in fact involve fractures to more than one bone, broken blood vessels, inflamed tendons, detached cartilages, and many other forms and descriptions of injury. Sometimes the label put on a medical condition by one medical practitioner will be different from the label put on it by another medical practitioner. A doctor's labelling of a condition may change, as may the diagnosis. Commonly, pathological conditions are not static and new pathological conditions may develop. What might start off as one condition may develop into another condition. A physical injury may develop into a disease, such as an infection, osteoarthritis or post-traumatic stress disorder.
As I endeavoured to emphasise in State of Tasmania v Parsons (supra) at pars53 and 73, a medical certificate will not of itself amount to a claim for compensation, although its presentation to the employer may form part of the evidence that establishes that a claim has been made. It is the worker who makes a claim. A medical certificate may support it and, of course, it is required before the worker is entitled to be paid weekly compensation. See the Act, s69(1). When making his or her claim, the worker may not use precise or accurate medical terms when describing the injury. He or she may use general or non-medical expressions such as "broken leg", "crushed knee", "sprained shoulder" and "twisted back", none of which may be accurate and none of which are likely to precisely identify the actual injury. A medical certificate accompanying the claim may describe the injury in different terms.
I will repeat the effect of much of what I said in FAI General Insurance v Morrisson (1993) 2 Tas R 9 at 16 – 21. It is a well understood principle of workers compensation legislation that the rights and liabilities of the worker and the employer respectively to receive and pay compensation, vest immediately at the time of the suffering of the original injury. Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 42; Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 650; Fenton v J C Hutton Pty Ltd [1972] Tas SR 272 (NC), 34/1972 at 2. Section 25(1) requires for the vesting of liability to pay compensation that the "worker suffers an injury".
Although it may not always be an appropriate term, it is convenient in a case such as this to adopt the expression of Underwood J in Electrolytic Zinc Company of Australasia Ltd v Maister [1990] Tas R 91 at 98, 99 of the suffering of the injury within s25(1) as the suffering of "the relevant event", for it expresses well the meaning of the word "injury" when it is used in s25(1) and many of the later sections in the Act. As his Honour said at 101, whether the injury which grounds liability to pay compensation is a disease or not, the word "suffers" connotes, as it did under the repealed Workers' Compensation Act 1927, a definable point in time when the injury was suffered or sustained, or occurred to or befell the worker. It is the occurrence of the injury in the circumstances prescribed by s25(1)(a) or (b) which attracts liability to pay compensation and the date of the suffering of the injury is significant for other purposes, such as quantifying the extent of liability to pay certain compensation and determining the period within which proceedings to recover damages may be commenced.
Once an injury has been suffered and the respective liabilities to pay or receive compensation have so vested, whatever physical or mental injuries subsequently develop from that can only be considered, as a general rule, as relevant consequences when later sections of the Act are applied. The reference to "injury" in s25(1) is only to the original injury which gives rise to the foundational liability to pay compensation under s25(1). For similar reasons, the calculation of compensation for permanent impairment under s71(1), which is based in part on the "basic salary" as a factor, depends on the date of the original injury which entitled the worker to compensation under the Act, and not on the date of development of any other medical condition that might later occur as a consequence of the original injury and which might possibly amount to the major cause of the condition of impairment. It is patent that by defining a claim for compensation for the purposes of PtVII, Div1, as a "claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation", s80A is referring to the injury originally suffered by the worker and upon which his or her claim for compensation is based for its foundation. If it is a fact, and it was not challenged before this Court, that the appellant's claim for a continuation of weekly compensation that was supported by Dr Hoyle's medical certificate of 4 July 2002, was based for its foundation on the suffering by him of his injury or injuries on 21 December 2000, then his July 2002 claim could not be described as a claim for compensation in respect of an injury for which he had not previously made a claim for compensation.
The Act has a relatively clear scheme with regard to disputing claims for weekly compensation. The first such claim to be made that is based on the suffering of an injury under s25(1), may be disputed by the employer under s81A(1). If the employer does not dispute liability for it under s81A, it is taken to have accepted liability in respect of the claim (see s81AB) and is liable accordingly. If the employer does dispute liability under s81A(1), but its reference of the dispute to the Tribunal is determined in favour of the worker, the employer will be liable accordingly. Thereafter, so long as the worker claims further payments of weekly compensation because of a claimed incapacity for work that he or she claims to have resulted from the original injury that was suffered and that is the s25(1) foundational basis for the claim, and the existence of the incapacity is supported by a certificate in an approved form as required by s69(1), the provisions of s81A(1) cannot be used by the employer to dispute the claim, except in the circumstances provided for by s69(13). I note en passant, that the certificate required by s69(1) is required to support only the existence of the incapacity for work and is not required to deal with the question whether the incapacity resulted from the original injury. State of Tasmania v Parsons (supra) at par78. However, because the certificate is required by s69(1) to be in a form approved by the WorkCover Tasmania Board, the Board could, if it wished, make provision in the certificate for the expression of an opinion about causation by the accredited medical practitioner or accredited person providing it.
If the employer is not permitted to use s81A(1) to dispute a claim for a continuation of weekly compensation, other provisions in the Act are available for it to do so. For example, if the employer wishes to raise a claim that the worker has wholly or substantially recovered from the effects of the original injury in respect of which weekly compensation is being paid, or that the incapacity is no longer due, wholly or substantially, to that injury, the employer may raise the matter under s86(1)(c). It may also use s81A(5).
On the appeal from the Tribunal, the learned judge disagreed with the determination of the Tribunal that it was without jurisdiction and set aside the order that dismissed the reference, ordering instead that the matter be remitted to the Tribunal to be dealt with according to law. This appeal concerns his Honour's orders.
The learned judge noted that the onset of depression may well have resulted from the original injuries to the appellant's knees that occurred on 21 December 2000 and if so, that the development of the depression, being a disease, as a consequence of those physical injuries, did not affect "the legal consequence that the physical injuries were the foundation of the worker's right to compensation" (see Tubemakers of Australia Ltd v Kurz 4/1998 at 6), but observed that such was a substantive issue that did not require determination on the hearing of what was a procedural question under s80A. That was correct. The procedural question was whether the appellant's claim for compensation was in respect of an injury for which he had not previously made a claim for compensation.
At the hearing before the Tribunal, counsel for the appellant submitted that the Tribunal had no jurisdiction to make an order with respect to the respondent's referral, because the referral did not concern a claim for weekly compensation in respect of an injury for which the appellant had not previously made a claim for compensation against the respondent or any other employer, as required by s81A(1) in the light of s80A. Because the Tribunal erroneously applied the law in operation prior to 1 July 2001, it did not determine that question. If it had applied the law in operation from that date, it should have realised that it needed to determine the validity of the submission made by the appellant's counsel. If the respondent's referral to the Tribunal concerned a claim by the appellant for weekly compensation in respect of an injury for which he had not previously made a claim for compensation, the Tribunal had power to make the orders sought by the respondent under s81A(3)(c) and (d), provided that the Tribunal considered that a genuine dispute existed, that is to say, orders that compensation by way of weekly payments not be paid by the respondent and that the cost of any benefits under PtVI, Div2, not be paid by the respondent. If on the other hand, the respondent's referral to the Tribunal concerned a claim by the appellant for weekly compensation in respect of an injury for which he had previously made a claim for compensation, the Tribunal did not have power to make the orders sought by the respondent.
A question of fact therefore required determination by the Tribunal. It concerned the nature of the claim that had been made by the appellant against the respondent and in respect of which the respondent had purported to dispute liability and to refer to the Tribunal under s80A(1), but not the validity of his claim. Further, the question concerned his claim as communicated to the respondent, upon receipt of which the respondent purported to raise the dispute under s81A(1). In State of Tasmania v Parsons (supra) at pars69 – 73, I discussed in a different context why it may be important to determine precisely what is being claimed by the worker.
Although the reasons of the Chief Commissioner demonstrated some confusion concerning whether he was determining the nature of what the appellant had claimed, as opposed to the validity of the claim, and he erroneously referred to the medical certificate, rather than the circumstances of its presentation, as the appellant's claim for compensation (see State of Tasmania v Parsons (supra) at pars53 and 73), the Chief Commissioner found that the claim was in respect of the original injury. The Chief Commissioner said:
"On the basis of the material provided I do not believe that the employer has illustrated any reasonable justification in treating the diagnosis of depressed mood as a new condition unrelated to the original claim for compensation. In my view therefore, the disputed medical certificate, if a claim for compensation, is a claim in respect to the original injury insofar as it arises out of or is in relation to such injury. In addition, given the findings above, it would also be a subsequent claim in respect of the original injury.
…
Given the material provided to the Tribunal which I must accept as the material relied upon by the employer in disputing this claim, the only reasonable inference is that the psychological condition was either caused as a result of the original incident or the ongoing affects [sic] of the physical injury. The employer provides no material to suggest that the causative link as outlined above can on any basis of fact or law be argued not to exist."
On the hearing of this appeal, the findings of the Chief Commissioner were not challenged by the respondent. Essentially the only argument advanced for the respondent by its counsel, which I rejected earlier in these reasons, was that if a claim for weekly compensation raises for the first time a new injury (including a disease) as a basis for the asserted incapacity, whether or not it is claimed to have resulted from the original injury suffered by the worker for which the employer had previously become liable to pay compensation, the employer is entitled to dispute the claim under s81A(1) and to refer the matter to the Tribunal.
In my opinion, grounds 3 and 4 of the notice of appeal to this Court should be upheld. In essence, ground 3 asserts that the learned judge erred in law in finding that the claim for compensation was in respect of an injury, namely depression, in respect of which the appellant had not previously made a claim. Although in a literal sense that is correct, the question fell to be determined for the purposes of ss80A and 81A, and the other sections in PtVII, Div1, and in that regard I respectfully conclude that the learned judge was in error for the reasons I have given. Similarly, ground 4 should be upheld. It asserts that the learned judge found that "the effect of the certification constituted a claim not previously made", when it was not open for the learned judge to do so.
I observe that for those cases to which s80A applies, the question whether the nature of the worker's claim has substantially changed or has been made on a substantially new basis, as postulated in State of Tasmania v Cook (2000) 9 Tas R 191 at 202 and referred to in Swan v Miller (supra) at par11 and State of Tasmania v West [2001] TASSC 62, will not arise. The question will always be restricted to the one stated in s80A.
Notwithstanding that the law at the wrong point in time was applied by the Tribunal, its ultimate determination that the appellant's claim was not one to which s81A(1) applied was correct. Its dismissal of the referral was also correct. Accordingly, it is my opinion that the appeal to this Court should be upheld. It should be ordered that the orders made by the learned judge on 12 November 2002 are quashed and that the appeal from the Tribunal that was instituted by the notice of appeal dated 13 September 2002 and filed on 16 September 2002 is dismissed.
File No FCA 100/2002
PETER MARCUS THORNTON
v APOLLO NOMINEES PTY LTD (ACN 009 512 225)
REASONS FOR JUDGMENT FULL COURT
BLOW J
11 December 2003
I agree with the orders proposed by Crawford J, and with his Honour's reasons.
3
6
1