Tubemakers of Australia v Adrian Kurz

[1998] TASSC 4

4/1998

PARTIES:  TUBEMAKERS OF AUSTRALIA LIMITED
  trading as TUBEMAKERS METALAND
  v
  KURZ, Adrian Gerald

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LCA26/1997
DELIVERED:  4 February 1998
HEARING DATE/S:  2 December 1997
JUDGMENT OF:  Crawford J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Costs - Generally - Power to order costs - Order made as to the costs of a reference following the making of an order for payment of compensation - Whether order for compensation made without jurisdiction - Whether order for costs consequently without jurisdiction.

Workers Rehabilitation and Compensation Act 1988, (Tas) s59(1).

Aust Dig Workers' Compensation [155]

Workers Compensation - Assessment and amount of compensation - Cessation of payments - Procedure - What constitutes valid medical certificate for continuation of payments - Effect of certificate referring to a medical condition additional to the original injury.

Pasminco Australia Ltd v Simmons A50/1993, referred to.

Viney v Roney Management Pty Ltd (1996) 6 Tas R 240, applied.

Workers Rehabilitation and Compensation Act 1988 (Tas), s69(1).

Aust Dig Workers' Compensation [237]

REPRESENTATION:

Counsel:
             Appellant:  W T McMillan
             Respondent:  B R McTaggart
Solicitors:
             Appellant:  Lander & Rogers
             Respondent:  Jennings Elliott

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  4/1998
Number of pages:  6

Serial No 4/1998

File No LCA26/1997

TUBEMAKERS OF AUSTRALIA LIMITED trading as TUBEMAKERS METALAND v ADRIAN GERALD KURZ

REASONS FOR JUDGMENT  CRAWFORD J

4 February 1998

By one notice appeals have been brought from two orders made on 26 August 1997, in respect of different references involving the same parties, by the Workers Rehabilitation and Compensation Tribunal.

History of the proceedings leading to an order for costs

In May 1996 the respondent suffered an injury to his left shoulder which arose out of and in the course of his employment by the appellant.  He was off work and claimed workers compensation including weekly payments.  The claim was accepted by the appellant and payments commenced.  A return to work program was agreed upon by both parties in August 1996 and another was agreed upon in October 1996.  In November 1996 a third return to work program was devised and accepted by them.  Under it the job description was that of crane operation and restrictions incorporated into the program included that he was not to lift greater masses than four kilograms and he was not to pull steel with his left arm.

On 30 December 1996 the respondent complained to his manager that he was suffering from pain in the shoulder which he had originally injured, saying that it was brought about when he reached up to a height to put a chain around some steel.  He went to his doctors and was certified unfit for work.  Some amount of weekly compensation was being paid to him at the time, but the appellant then proceeded to terminate it by following the procedures laid down by the Workers Rehabilitation and Compensation Act 1988, s86. It maintained a right to terminate under s86(1)(d) which authorised an employer, subject to the section, to terminate or reduce a weekly payment where a worker had failed or refused to undertake or participate in a rehabilitation program recommended by his employer. It was claimed by the appellant that the further incapacity of the respondent had been brought about by his actions in performing activities at work which were prohibited by, or which were outside the scope of, the return to work program which they had adopted, and that by his actions he had failed or refused to undertake or participate in a rehabilitation program recommended by the appellant. Presumably the appellant served on the respondent a notice of intention to terminate the weekly payments as required by s86(3), and then terminated the payments in accordance with the notice. The date of termination was 7 February 1997, or thereabouts.

Pursuant to s86(4) the respondent, wishing to dispute the termination of the weekly payments, referred the matter to the Tribunal for determination. In the course of that proceeding a conciliation conference was conducted before the Registrar, pursuant to the provisions of s43A. The legislative purpose of a conciliation conference is "resolving the claim for compensation by agreement". See s43A(1). Each party was represented by a solicitor at that conference, at which it was agreed that there would not be a hearing in the usual way before the Tribunal, but instead written submissions would be presented to it. The parties agreed that the appellant's written submissions would be prepared first, that the respondent would respond with his written submissions and the appellant would have an opportunity to present further written submissions in reply. Subsequently that is what occurred. In accordance with their agreement, the parties did not attend before the Tribunal but their written submissions were delivered to the Commissioner. On 9 May 1997 the Commissioner, after considering the submissions, published in the name of the Tribunal written reasons for determining that there was not a failure or refusal by the respondent to participate in a rehabilitation program. It was ordered by the Tribunal that day that the appellant "reinstate payments of compensation to the worker as and from the date of termination".

The written submissions were not before me, but it appears that as well as legal submissions they contained some statements of fact, although there was no agreed statement of facts in a formal sense.  In the reasons for his determination the Commissioner expressed concern about that.  After commenting that he would have thought it more appropriate for the respondent to prepare the first set of written submissions rather than the appellant, he said:

"That comment applies if this is essentially a legal argument as to validity.  The argument as to termination can only be had, however, after certain facts are found.  I must say also that I have found it difficult to reach conclusions of facts without an express Agreed Statement of Facts, and this has tended to inhibit my findings.  I would prefer in future not to deal with this type of termination in this way.

However both parties were represented by counsel and both have agreed to do it the way that they have done it, and therefore I will deal with the matters as put to me by counsel in writing."

I have on occasions in the past even had difficulty with agreed statements of fact.  It is sometimes a problem that the agreed statement does not contain sufficient facts, or is not drawn with sufficient clarity.  To put facts before a tribunal by way of written submissions, as was done in this case, would be more likely to cause problems for the Tribunal.

The reasons for the Commissioner's determination disclose that a considerable amount of factual material was before him, and he found and stated a number of facts in his reasons.  He was satisfied that the exacerbation of the respondent's injury was caused by an activity at work which was outside the terms of the rehabilitation program recommended by the appellant which the respondent had agreed to undertake.  The Commissioner explained why he did not think the relevant conduct of the respondent amounted to a failure or refusal to undertake or participate in the rehabilitation program.  He also considered whether the respondent had been guilty of serious or wilful misconduct, but determined that he had not.  (For the relevance of that see s25(2)(a).)

The appellant did not appeal from the order that it reinstate payments of compensation to the respondent.  The reference subsequently came on for hearing before the Commissioner on 12 August 1997 and solicitors appeared for both parties.  The solicitor for the respondent applied for an order that the appellant pay the costs of the reference.  The solicitor for the appellant submitted that in the exercise of his discretion the Commissioner should not make that order.  In the alternative, the solicitor for the appellant submitted that there should have been a hearing before the Tribunal "via the mechanism of a section 45 notice" but there was not and that therefore there was "no valid order of the Tribunal from which an order can be made for costs" and "that the Tribunal does not have power to make a determination in the absence of hearing witnesses and making appropriate findings of fact".  He added that "clearly, the legislation contemplates that oral evidence is to be given in all proceedings before the Tribunal and parties cannot confer jurisdiction on a Tribunal where otherwise jurisdiction is warranted (sic)".  The Commissioner reserved his decision.

On 26 August 1997 the Tribunal ordered that the appellant pay the respondent's costs of and incidental to the reference at the highest scale provided for in Table B of Appendix M of the Rules of the Supreme Court as taxed by the Registrar.  In his reasons for making that order the Commissioner once again expressed concern about the procedures which had been followed by the parties in presenting the reference to him for determination by written submissions.  However his expression of concern was of no consequence.  He rejected the jurisdiction argument, exercised his discretion and made the order for costs in favour of the respondent

The appeal from the order for costs

The appellant has appealed from that order for costs, not on the basis that the Tribunal wrongly exercised its discretion but on the ground that "the Tribunal erred in law in that an order for costs was made in respect of a determination previously made by the Tribunal without jurisdiction".  As I understood the submission of counsel for the applicant it was that the Tribunal had no jurisdiction to make the determination and order of 9 May 1997 and that it follows that the Tribunal therefore had no jurisdiction to make the later order for costs.  The only precedents cited by counsel were R v Shropshire County Court Judge (1887) 20 QBD 242 at 246 - 247, 248 and Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 at 820 - 821, 828, which are authority for the proposition that the consent of parties cannot vest jurisdiction which a court or Tribunal does not have without consent.

There are a number of reasons why the submission should be rejected. Firstly, the Tribunal did have jurisdiction to make the determination and order of 9 May 1997. That jurisdiction arose upon the making of the reference to it under s86(4). It is arguable, and it was argued by the appellant's counsel, that ss45(1),48(1) and 56(2), indicate a requirement that a hearing should be conducted by the Tribunal before determining a reference. (On the other hand it might be argued that ss49(1) and 57(1) authorise the Tribunal not to conduct a hearing in an appropriate case.) But notwithstanding the question whether correct procedures were followed, there is no doubt that the Tribunal had jurisdiction to make the determination and order it made. Secondly, by virtue of s62(1), the order of the Tribunal is final and binding on all parties to the proceeding, subject to the right under s63(1) of a party who is aggrieved by a determination, order, ruling or direction of the Tribunal in point of law, to appeal to this Court. The appellant has not appealed to this Court with respect to the determination and order of 9 May 1997. The order is therefore final and binding on the appellant. Thirdly, the jurisdiction of the Tribunal to make the order that the appellant pay the respondent's costs of the reference did not depend for its validity on a valid order having been made on 9 May 1997. The power to make an order for costs is in s59(1) and it is a power to "make such order as to costs as it considers appropriate in any proceedings before it". The order for costs which was made concerned the costs of and incidental to the reference. Clearly the Tribunal had the power to make the order for costs regardless of whether it had or had not made any other form of order or determination when dealing with the reference. For all these reasons, and particularly the third, the appeal must fail.

I add that the Court should be loathe to encourage an appeal of this nature, based as it is on a complaint that the Tribunal dealt with the reference in a manner encouraged and consented to by the appellant.

The appeal against the order for costs will therefore be dismissed.

The medical certificates and the order to pay weekly compensation

Notwithstanding that on 9 May 1997 the Tribunal ordered that the appellant reinstate payments of compensation to the respondent as and from the date of termination, the appellant did not do so.  On 12 August 1997 the parties appeared before the Tribunal and the respondent sought a further order as to the amount of those payments.  The matter in issue arose out of the terms of two medical certificates submitted by him in support of his ongoing entitlement to weekly compensation at the rate at which it was being paid when it was terminated.

The relevant injury originally suffered by the respondent was to his left shoulder.  Seeking a continuation of his weekly payments, he relied on two certificates of Dr T D Barnes.  The first was dated 3 February 1997 and certified that when he was seen by Dr Barnes that day he was suffering from the left shoulder injury and "with subsequent work related stress" and would be unfit for any work from 3 February to 3 April 1997.  The second certificate was dated 2 April 1997 and certified that when he was seen by Dr Barnes that day he was suffering from — (1) left shoulder injury, and (2) depression - work related stress, and would be unfit for any work from 2 April to 2 June 1997.

On 26 August the Tribunal ordered that the appellant pay the respondent his normal weekly payments calculated in accordance with the Act.  Reasons for that order were published.  The appellant had relied on the fact that the original injury, which was the foundation of the respondent's entitlement to compensation, concerned only the left shoulder injury, whereas the certificates also spoke of work related stress.  The learned Commissioner dealt with the argument in the following way:

"The worker has submitted medical certificates that now speak of a left shoulder injury and subsequent work related stress. There is of course no claim for stress and no liability upon the employer to make such payments in relation to stress until the worker proves an entitlement. There is however a continuing obligation by way of a liability to make payments to the worker for his left shoulder injury and there are certificates indicating that that injury is causing total incapacity. The Tribunal has found that the employer unlawfully terminated those payments and those payments are to be reinstated. So long as the worker produces certificates relating to that injury then there is an obligation to pay until the matter is reviewed under Section 88 or Section 86(4)."

The appeal from the order to make weekly payments

The appellant has appealed from that order.  The sole ground of the appeal is that "the Tribunal erred in law in finding that medical certificates which contained a reference to an injury not claimed for, obliged the employer to make a payment of compensation to the worker".

The amount of weekly compensation which must be paid by an employer to a worker, is governed by s69(1), which provides that subject to the section, "where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or a credited person", the weekly compensation payable to him under the Act is to be calculated in accordance with the provisions of the subsection which follow. It was held in Pasminco Australia Ltd v Simmons A50/1993 that unless the worker supplies the employer with a medical certificate which covers the period in respect of which the worker claims weekly compensation, the employer is entitled to decline to make payments of it. If there is not a medical certificate which conforms with s69(1) the employer is not obliged to follow the course provided for in s86(1) before it can lawfully cease making weekly payments in such circumstances.

The effect of Pasminco Australia Ltd v Simmons was stated by Zeeman J in Viney v Roney Management Pty Ltd (1996) 6 Tas R 240 at 245 - 246 in these terms:

"It is authority for no more than that actual payment of weekly compensation is not required in respect of any period not covered by a medical certificate under s69(1). Once a weekly payment has commenced it may not be terminated or diminished unless authorised by s86. Nevertheless, until" [his Honour plainly meant "if"] "a worker fails to present a medical certificate in respect of a particular period the employer is not obliged to pay any weekly payment in respect of that period. The withholding of a payment in such circumstances does not amount to a termination of the weekly payment. All that occurs is that the obligation to make the actual payment is left in abeyance until such time as the relevant medical certificate is presented."

Both of the medical certificates of Dr Barnes certified that the respondent was suffering from the left shoulder injury and from work related stress or depression and that he was unfit for any work for the periods stated in the certificates. If the certificates had made no mention of the work related stress, but had instead only referred to the left shoulder injury, the appellant would have had no argument. I do not see how the inclusion of another medical complaint can change that. It may reasonably be inferred from the certificates either that each complaint was the cause of the respondent being unfit for any work or that both complaints in combination with each other were the cause of that. In either case, it would not make any difference to the appellant's liability to continue the payments at the rate being paid at the time of termination in February 1997. Counsel for the appellant complained that the certificates were ambiguous, and that the appellant did not know whether the left shoulder injury was the cause of one per cent or ninety-nine per cent of the unfitness. But it is reasonable to assume from the certificates that what Dr Barnes was certifying was that to some extent at least the left shoulder injury was part of the cause and that is a complete answer. In such a circumstance the appellant is obliged to pay the weekly compensation at the same rate as before. If it wishes to terminate or reduce the weekly payment it may only do so by proceeding under s86 or s88. In this regard I apply what was said by Zeeman J in Viney v Roney Management Pty Ltd (supra) at 246:

"I do not consider that anything said in Pasminco Australia Ltd v Simmons Serial No A50/1993 provides authority for the proposition that where a worker who has been wholly incapacitated provides further certificates certifying to partial incapacity the employer is unilaterally entitled to reduce the weekly payment. Where a worker in receipt of a weekly payment in respect of an incapacity certified as being total incapacity subsequently submits a certificate of partial incapacity that worker is entitled to continue to receive a weekly payment at the same rate until such time as it is reduced in accordance with s86 (if that section is available) or the Tribunal makes an order to that effect pursuant to s88. On the hearing of a reference under s88 in such circumstances, the Tribunal is to have regard to the relevant provisions of s69. An application of those provisions may require a reduction of the weekly payment but that is not necessarily the case where a worker has regained some capacity for work but retains some incapacity."

If the appellant wishes to terminate or reduce the weekly payment because of the intervention of the stress, arguing in the terms of s86(1)(c) that the respondent's incapacity is no longer due, wholly or substantially, to the injury then it is in s86 that the appropriate procedure is to be found.

I note in passing that there seems to be a defect in the form of the medical certificate, which I presume was approved by the Board, in that the form does not provide for it to be certified that the unfitness of the worker resulted from the injury referred to earlier in the form.  That has apparently been left to be assumed.

I also comment that it may well be that the work related stress or depression certified by Dr Barnes to have been suffered by the respondent has itself resulted from the left shoulder injury.  If the stress or depression was caused by the left shoulder injury then it may be arguable that the incapacity resulting from it may appropriately be regarded as resulting from the left shoulder injury for the purposes of the Act.  In FAI General Insurance v Morrisson (1993) 2 Tas R 9 I considered a case in which a disease (post traumatic stress disorder) followed upon physical injuries suffered at work, and at 19 determined that the right to compensation for any incapacity caused by both the physical injuries and the post-traumatic stress disorder vested at the time of the original injuries and that the development of the disease as a consequence of the physical injuries did not affect the legal consequence that the physical injuries were the foundation of the worker's right to compensation. I particularly refer to that case because at the hearing of this case counsel for the appellant tendered in evidence before the Tribunal a letter from Dr Barnes dated 30 April 1997, which explained, it seems to me, that as a direct result of stresses suffered by the respondent consequent upon the effects of the left shoulder injury, he developed a depressive disorder. If that is so then it may well be, although I make no determination about the matter, that any incapacity for work as a result of the depression should be treated by the parties as an incapacity resulting from the left shoulder injury.

It will be ordered that the appeal from the order made by the Tribunal on 26 August 1997, that the appellant pay the respondent his normal weekly payments calculated in accordance with the Act, be dismissed.