Von Stieglitz v Tandara Lodge Nursing Home Inc

[2003] TASSC 108

[2003] TASSC 108

CITATION:              Von Stieglitz v Tandara Lodge Nursing Home Inc [2003] TASSC 108

PARTIES:  VON STIEGLITZ, Robyn Margaret
  v
  TANDARA LODGE NURSING HOME INC

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 69/2003
DELIVERED ON:  30 October 2003
DELIVERED AT:  Hobart
HEARING DATES:  17 October 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Cessation of payments – Application by worker for continuance of payments – Whether payments terminated in accordance with Act or merely ceased on non-presentation of medical certification of incapacity – Whether payments must resume on presentation of further medical certificate.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss69(1) and (13), 80A, 81AB.
Viney v Roney Management Pty Ltd (1996) 6 Tas R 240, referred to.
Aust Dig Workers Compensation [238]

REPRESENTATION:

Counsel:
             Appellant:  M K Wilkins
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Phillips Taglieri
             Respondent:  Jackson & Tremayne

Judgment Number:  [2003] TASSC 108
Number of Paragraphs:  29

Serial No 108/2003
File No LCA 69/2003

ROBYN MARGARET VON STIEGLITZ
v TANDARA LODGE NURSING HOME INC

REASONS FOR JUDGMENT  CRAWFORD J

30 October 2003

1. On 19 September 2002, the appellant referred to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") her claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act"), in respect of an injury that occurred on 15 February 2000, for the determination of the following:

1her entitlement to payment of weekly compensation; and

2her entitlement to compensation for medical and other services pursuant to the Act, PtVI, Div2; and

3that the respondent and/or its licensed insurer pay her costs of and incidental to the reference.

1. The reference was listed for hearing before the Tribunal on 24 March 2003.  At the outset of the hearing, the Commissioner said that it was his understanding that there was a preliminary issue to be determined concerning the claim, but he did not know what that preliminary issue was.  Thereupon, counsel for the appellant addressed the Tribunal.  He opened by stating that he would briefly outline the appellant's position in relation to the referral, which would clarify what the particular issue was.  He added that he intended to assert some facts which he expected would be sufficient for the Tribunal to be able to determine the issue.  He then made a number of assertions of fact and tendered some documents that the Tribunal admitted as exhibits.  The relevant substance of the assertions and documents was as follows.

1. On 15 February 2000, the appellant, a registered nurse working in a nursing home, injured her back and claimed workers compensation from her employer, the respondent, on 16 February 2000.  In the claim form, she stated that she had suffered a strain to her lower back when assisting a resident to stand.  The respondent's counsel later tendered a medical certificate dated 15 February 2000, in respect of that claim, certifying the appellant to be incapacitated for work from 16 February to 18 February 2000, because of musculoligamentous low back pain said by the appellant to have been caused when lifting a patient on 15 February.  The certifying medical practitioner was of the opinion that the injury was consistent with the stated cause.  Liability in respect of the initial claim was accepted by the respondent and the claim followed a common path, including payments of weekly compensation. 

1. Counsel for the appellant said that "eventually the worker ceased serving workers compensation certificates, and there was a non-workers compensation certificate provided to the employer which, amongst other things, asserted that she was fit to return to work, albeit – my recollection is, that there were some restrictions in relation to that, but you needn't trouble yourself about those particular issues." 

1. Later, in the course of submissions from the respondent's counsel, a medical certificate dated 19 October 2000, was admitted as an exhibit.  It stated that the appellant had been examined that day, that the provisional medical diagnosis was unchanged, that the appellant was fit to return to modified duties from 16 October 2000 (the handwriting is difficult to read, but I think it described the modified duties as "permanent alternative duties new position created"), that she ceased to be incapacitated for work on 16 October 2000 and that the certificate was a final/clearance certificate, rather than an initial or continuing one.  Counsel for the respondent referred to that certificate as amounting to a final clearance certificate.  Whether it was the certificate to which counsel for the appellant referred as a non-workers compensation certificate, was not explained to the Tribunal.

1. Counsel for the appellant did not inform the Tribunal whether payments of weekly compensation ceased and if so, when, and the reason for them ceasing.  That they ceased was, I think, implicit in the submissions made by counsel for the parties to the Tribunal, but the legal reasons for the cessation were not touched upon.  Counsel for the appellant went on to say that there was then a substantial gap in time "in the delivery of workers compensation certificates certifying incapacity". 

1. Next, counsel for the appellant said to the Tribunal that the appellant "then served … further workers compensation certificates certifying incapacity".  The certificates became exhibits.  They were dated 9 and 15 May 2002 and 9 August 2002 and were made by Dr D Proud.  In the one dated 9 May 2002, he said that he examined the appellant on that day and that the appellant's presenting symptoms were "acute or chronic back pain following lumbar facet joint injection".  In the space on the form asking for the provisional or final medical diagnosis, it was stated "as above".  Dr Proud certified that the appellant had stated the condition was caused by an incident which occurred "over 2 years ago never recovered fully" and that circumstances were "back pain constantly present Dr Henshaw gave further injections to spine on Monday and made much worse this time".  By ticking appropriate boxes on the form, Dr Proud certified that the injury or disease was consistent with the stated cause and also that it was a recurrence of a previously compensable condition.  He certified that the appellant would be incapacitated for work from 6 to 16 May 2002, that he wished to review the appellant on 16 May and that he had referred her to a Dr Liddell.  Finally, where the form asked whether the type of certificate was initial, continuing or final/clearance, Dr Proud ticked "initial", a response that was probably incorrect. 

1. The following medical certificate dated 15 May 2002, said that Dr Proud had examined the appellant that day, that there was no change in the presenting symptoms and that the appellant was fit to return to modified duties from 17 May to 17 August 2002. 

1. On 29 May 2002, the respondent filed a referral to the Tribunal. It stated that the appellant had made a claim for compensation in relation to an injury, that it disputed any liability to pay weekly compensation and the cost of benefits under the Act, PtVI, Div2, in respect of that injury from 6 May 2002 and that it referred the matter to the Tribunal under s81A. It gave as its reason for disputing liability to pay compensation, that there was insufficient evidence to substantiate that the appellant was incapacitated for work as certified in the two medical certificates. In evidence was a letter dated 28 May 2002, giving notice of the dispute to the appellant.

1. The next medical certificate dated 9 August 2002, said that Dr Proud had examined the appellant that day and there was no change in the medical diagnosis.  Insofar as it certified incapacity for work, the certificate stated that the appellant was fit to return to modified work from 17 August to 27 August 2002 and that there was "surgery on back to be performed in Hobart by neurosurgeon".  It then stated that the appellant would be incapacitated for work from 26 August to 31 October 2002.  The certificate was stated to be a continuing one, rather than an initial or final/clearance certificate. 

1. On 19 August 2002, the respondent filed another referral to the Tribunal. It stated that the appellant had made a claim in relation to an injury, that it disputed any liability to pay weekly compensation and the costs of benefits under the Act, PtVI, Div2, in respect of that injury, and that it referred the matter to the Tribunal under s81A. It gave as its reasons for disputing liability to pay compensation that there was insufficient evidence to substantiate that the appellant was incapacitated for work, as certified in the medical certificate dated 9 August 2002, and that if the appellant was so incapacitated, the incapacity was not related to the injury. In evidence was a letter dated 15 August 2002, giving notice of the dispute to the appellant.

1. Prior to the hearing of either reference, the respondent discontinued them by notice in writing pursuant to the Workers Rehabilitation and Compensation Regulations 2001, reg5. The regulation simply permits a party to discontinue any application or referral by giving notice in writing to the Tribunal and any other party. However, at no time up until the Tribunal's hearing on 24 March 2003, of the appellant's reference, from which the present appeal has its source, did the respondent pay compensation under the Act.

1. Having made his assertions of fact and having tendered documents to which I have referred, the appellant's counsel stated what he said he wanted the Tribunal to determine that day:

"It will be my submission, and it is the determination that I seek today, that in that set of circumstances, there not being a genuine dispute finding in relation to those certificates certifying incapacity, the employer is obliged to make payments of compensation."

1. The appellant's counsel then addressed a number of submissions to the Tribunal.  In substance they were as follows:

1The respondent was entitled to treat the medical certificates dated 9 and 15 May and 9 August 2002, as claims for compensation within the meaning of s81A, because s69(13) states:

"(13)   If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies."

2Accordingly, if it wished to do so, the respondent was entitled to dispute the claims constituted by the medical certificates and to refer each dispute to the Tribunal under s81A(1) and seek a determination that it was a genuine dispute (and that compensation not be paid by the respondent under s81A(3)(c) and (d)). 

3By discontinuing the two references it had made to the Tribunal, the respondent must be treated as if it had not invoked the provisions of s81A. 

4Because the respondent is to be treated as not having disputed liability, it must be taken to have accepted liability in respect of the claims, because of the provisions of s81AB:

"81AB ¾ Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the employer does not, in accordance with section 81A, dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim."

5Alternatively, in the circumstances of the case, "the provisions of s69 in general come into play … such as to require the employer to make payments of weekly compensation [as there are] now certificates certifying incapacity, and the cessation of the previous certificates simply left that obligation in abeyance".  See Viney v Roney Management Pty Ltd (1996) 6 Tas R 240.

1. Submission 5 would, I think, have been more comprehensively articulated if it had been preceded with the following:

5AAlternatively, following the original suffering of the injury by the appellant on 15 February 2000, her claim for compensation was accepted by the respondent and the claim followed a common path, including payments of weekly compensation. 

5BAs a result, and by virtue of s81AB, the respondent was to be taken as having accepted liability in respect of the appellant's claim for weekly compensation [and perhaps also, depending on the facts, for benefits under PtVI, Div2] in about February 2000.

5CBetween 2000 and 2002, there were substantial gaps in the presentation of medical certificates and in the payment of weekly compensation.

1. Counsel for the respondent then addressed the Tribunal.  I do not understand that he challenged any of the assertions of fact made by counsel for the appellant.  He submitted:

1It was plain that the medical certificate of 9 May 2002, was based on the injury originally suffered by the appellant and which was the subject of her original claim for compensation in February 2000. 

2Because of that, the certificate of 9 May 2002, could not amount to "a claim for compensation" for the purposes of PtVII, Div1, because it did not fall within the definition of that expression in s80A:

"80A ¾ For the purposes of this Division, 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."

3It followed that the certificate was not a claim for compensation for the purposes of s81 and the respondent was not obliged by subs(1) of that section to commence making weekly payments. 

4Section 69(13) gave to the appellant an option whether or not to treat a further certificate of the kind referred to in it as a claim for compensation to which s81A applied, but not as a claim for compensation to which any of the other sections in PtVII, Div1 applied (ss81, 81AA, 81AB, 81B and 83 – 90).

5For that reason, all s69(13) did was give a right to the respondent to dispute the claims raised by the medical certificates of 2002, pursuant to the dispute provisions of s81A.  The provisions of s81AB, that by failing to dispute a claim for compensation the employer was to be taken to have accepted liability in respect of the claims, did not apply to the claims constituted by those medical certificates. 

1. In the reasons for the Tribunal's determination delivered on 18 July 2003, the Tribunal found the following facts, none of which I understand to be materially challenged. The appellant made a claim for compensation on 16 February 2000, in which she alleged she had suffered a lower back strain as a result of a lifting activity conducted in the course of her employment the previous day. She had periods of both total and partial incapacity, and underwent appropriate medical treatment and a return to work program, which concluded with a final clearance for pre-injury duties on 19 October 2000. (Whether the so called final clearance was in fact one for pre-injury duties is, I think, open to question on the material that was before the Tribunal, but nothing appears to depend on that.) Workers compensation benefits were paid during this period. (I think that was an assumption made by the Tribunal.) Subsequently, the appellant delivered to the respondent a series of three workers compensation medical certificates dated 19 and 15 May and 9 August 2002. (The reference to 19 May was erroneous. The correct date was 9 May. The error was of no consequence.) What the appellant was claiming was that her incapacity for work, as certified in those medical certificates, resulted from the suffering by her of the original injury on 15 February 2000. Initially the respondent disputed each of those certificates in accordance with s81A, but before a determination could be made in respect of those referrals, it discontinued them in accordance with reg5. The appellant thereupon applied to the Tribunal pursuant to s42, seeking a determination of her entitlement to workers compensation benefits in respect of the injury suffered by her on 15 February 2000.

1. The Tribunal then said that the preliminary issue that had been identified to it and that ought to be determined, was "whether or not the employer was able to dispute this claim by the worker, on the basis that its failure to obtain appropriate orders in respect to the medical certificates identified above," (the three certificates of 2002) "initiated the application of section 81AB of the Act".  If it did, the Tribunal noted, the respondent was to be taken to have accepted liability in respect of the appellant's claim.  In referring to the preliminary issue in that way, the Tribunal summarised the appellant's submissions 1 – 4 above, but did not refer to what I have identified as the fifth submission that was made in the alternative.

1. The Tribunal accepted that the three medical certificates were claims for compensation.  In State of Tasmania v Parsons [2002] TASSC 59 at pars53 and 73, I said that a medical certificate will not of itself amount to a claim for compensation, although its presentation to the employer may be evidence, or part of the evidence, that a claim has been made (and what it is). I pointed out that it is the worker who makes a claim and that 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). I endeavoured to emphasise that point because in a case where it is important to determine what the worker is claiming, a reference to a medical certificate as the claim for compensation can be misleading. If it is understood that the worker makes the claim and that the medical certificate is not in itself a claim for compensation, the mind is better focussed on what must be determined.

1. However, I must acknowledge that the legislature literally contradicted what I said when it enacted s69(13), the operation of which commenced on 1 July 2001.  The subsection provides that if the period specified in a medical certificate provided by a worker under s69 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 section 81A applies".  It follows therefore, that the Tribunal cannot be faulted for having described the three medical certificates, or at least the first and third of them, as claims for compensation.  Nevertheless, it may properly be inferred that the legislature intended that the provision of a medical certificate by a worker to the employer, in its particular circumstances and perhaps having regard to the preceding history, amounted to the worker's claim for compensation rather than the contents of the medical certificate alone.

1. The Tribunal held that the appellant's claims for compensation that were represented by the 2002 medical certificates, were claims based on the injury suffered on 15 February 2000 and accordingly, the claims did not fall within the meaning of the expression "a claim for compensation" as defined in s80A for the purposes of PtVII, Div1.  The Tribunal was correct and neither party challenged the point at the hearing of the appeal.  Because the 2002 certificates were based on the injury that was suffered on 15 February 2000, they could not be said to be in respect of an injury for which the appellant had not previously made a claim for compensation, as s80A required.  The Tribunal then held, and correctly so too, that it followed that the 2002 claims for compensation were not claims for compensation for the purposes of PtVII, Div1.  It followed in turn from that, and the Tribunal so held, that there was no obligation upon the respondent to comply with the statutory scheme set out in that Division, nor was the respondent to be taken, by virtue of s81AB, to have accepted liability in respect of the claims, because they were not claims to which the section applied.

1. The Tribunal concluded its reasons by stating: "Accordingly this preliminary issue is determined in favour of the employer and the matter will be returned to the conciliation process". Having regard to its earlier identification of the preliminary issue it had to determine, the Tribunal's final determination was to the effect that as s81AB did not (directly) operate with respect to the 2002 claims, the respondent was able to dispute them on the appellant's reference to the Tribunal. However, it is apparent from all of the reasons expressed by the Tribunal that it did not address the fifth and alternative submission of the appellant's counsel that I identified earlier. It was to the effect that in the circumstances of the case, the respondent's liability to pay the appellant weekly compensation as a result of the suffering of the injury on 15 February 2000, having been established in 2000 and payments having then been made, and the cessation of medical certificates in 2000 having simply left the respondent's obligation in that respect in abeyance, upon the presentation of the 2002 certificates s69(1) came into operation and the respondent was obliged to resume the making of weekly payments in accordance with those certificates.

1. In support of that submission, counsel for the appellant referred the Tribunal to Viney v Roney Management Pty Ltd (supra), a case that I was told has often been cited for the appellant's proposition.  At 245 – 246, Zeeman J said:

"Once a weekly payment has commenced it may not be terminated or diminished unless authorised by s86. Nevertheless, until [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."

1. What appears to have been meant by his Honour in that passage that is relevant to this case, is that if payments of weekly compensation cease merely because medical certificates certifying a continuation of an incapacity to work have not been presented, the obligation to make the payments is in abeyance until another medical certificate certifying incapacity is presented, and the withholding of a payment in such circumstances does not amount to a termination of the weekly payments. His Honour also said that they may not be terminated unless authorised by s86. I note that in that respect, his Honour was clearly incorrect, for there are many provisions in the Act which are routes to the termination of weekly payments. However, I make no comment as to the correctness of the rest of what his Honour said, particularly because submissions were not addressed to me about the matter.

1. No attack was made before me by counsel for either party as to the correctness of the Tribunal's reasons, so far as they dealt with the issues before it.  The only grounds of appeal expressed in the notice of appeal that were relied on by the appellant were grounds 3, 4 and 5 and, essentially, they complain that the Tribunal failed to find in the appellant's favour with respect to the fifth and alternative submission that was not addressed by the Tribunal at all.

1. Counsel for the respondent pointed out that the assertions of fact and documentation before the Tribunal were deficient concerning what happened, when it happened, and the circumstances in which it happened, when payments of weekly compensation ceased some time in 2000.  Whether payments stopped because the appellant returned to work, or merely because medical certificates ceased to be presented, was not stated.  In the light of what counsel agreed before me was the state of the law, the deficiency is patent.  What they agreed, rightly or wrongly, I do not decide, was:

1Section 86(1)(a) authorises an employer to terminate weekly payments if the payment is in respect of total incapacity and the worker has returned to work.  In such event, upon receipt of a subsequent certificate certifying incapacity, the employer is entitled to dispute liability and does not have to recommence payments of weekly compensation upon receipt of the certificate.

2The same position is reached if the payment of weekly compensation is terminated under any other provision of the Act.

3On the other hand, if an employer stops making weekly payments merely because of the non-presentation of further medical certificates that certify continuing incapacity, as required by s69(1), the obligation to make those payments is only in abeyance until a further certificate is provided under the subsection, whereupon the employer must immediately recommence payments in accordance with the fresh certification.

1. I have determined to resolve the appeal in the following way.  None of the grounds of appeal have been made out.  There were insufficient facts before the Tribunal upon which it might have determined the matters raised by the grounds in favour of the appellant.  In other words, there was insufficient evidence before the Tribunal to enable it to determine the fifth and alternative submission put to it by the appellant's counsel.  Accordingly, the appellant's reference to the Tribunal by which she seeks payments of compensation still falls to be determined by the Tribunal.  Whether it decides to determine the fifth and final submission of the appellant's counsel following further evidence, as a preliminary point, or whether it decides to hear at the one time all matters raised by the reference, will be a matter for the Tribunal.

1. The appropriate order for this Court to make is that the appeal be dismissed.

1. This case demonstrates the need for care and accuracy when formulating agreed facts and issues for determination by a tribunal or court.  Experience shows all too often that statements of issues, whether in a formal document stating a case or not, and statements of agreed facts are inadequate for the determination of all matters in dispute between parties.