Anderson v Arnotts Biscuits Limited [2001] SAWCT 10

5 The worker injured his hip and suffered disabilities on 3 February 1997.

6 He claimed compensation on 21 March 1997. On 17 April 1997 the claim was accepted. Prior to the acceptance of the claim the exempt employer had the benefit of a medical report from the worker's doctor. The letter of acceptance said among other things:-

"We refer to the above claim seeking compensation pursuant to Section 53(5) of the Workers Rehabilitation and Compensation Act, 1986, in respect of a (L) hip/groin injury that occurred on or about the 3rd February 1997. We have now completed our enquiries and have determined that:"

7 During 1997 the worker underwent left hip surgery and it was provided with a report from the treating orthopaedic surgeon Dr A Spriggins. That confirmed the compensability of the injury. Dr Spriggins provided another report on 28 May 1998.

8 The exempt employer arranged medical examinations and obtained reports from Dr Graham occupational physician on three occasions 1 August 1997, 24 September 1997 and 27 November 1997.

9 In July 1999 a further medical report was obtained by the exempt employer from Professor Donald Howey.

10 Further examinations of the worker conducted by Dr Anthony Meegan occupational physician at the behest of the exempt employer.

11 On 21 August 2000 the worker was subjected to a further medico-legal examination at the request of the exempt employer by the Associate Professor Robert Bauze. Following clarification of a report of the 23 August 2000 in a further report of 27 October 2000 Mr Bauze stated that the incident that occurred on 3 February 1997 "may have caused a temporary aggravation".

12 The exempt employer on 27 September 2000 purported to redetermine the worker's claim pursuant to s 53(7a) of the Act. The terms of the redetermination relied upon s 53(7a)(c):-

"The redetermination is appropriate by reason of new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made."

13 It is agreed between the parties that the "new information" is the opinion of Dr Bauze formed in August 2000.

14 The test to be applied in an application such as this is so well known that it hardly needs to be restated. It is the power to grant summary relief must be exercised with exceptional caution and if it appears that there is a real issue to be tried on a question of fact or law it is inappropriate to grant summary relief. In other words I should only grant the order sought if in reality there is nothing to argue about. (Webster and Another v Lampard [1993] HCA 57; (1993) 177 CLR 598). That test has been variously put with semantic differences as being "the application can only succeed if there's really no real issue to be determined at the trial".

15 If it appears that there is a real question to be determined whether in fact or law and that the rights of parties depend upon it, then it is not competent to dismiss the action. This law that has been applied. In numerous cases in this Tribunal which are referred to in decisions such as Sutton v SA Water Corporation [2000] SAWCT 100; Draxler v WorkCover/HIH Workers Compensation (SA) Ltd (Bob Blanks Consultants) [2000] SAWCT 162.

16 The contention of the applicant worker is that the distance in time from the original determination on 17 April 1997 to the date of the redetermination on 27 September 2000 is so great and arises in such circumstances as the new information ie the opinion of Professor Bauze could not as a matter of law be said to be "new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made". It is no more than the discovery of a new opinion which is contrary to the thrust of all the previous medical opinions. Using that to effectively avoid a s 36(1)(b) notice - with the attendant right of the worker to have the benefit of a continuation of weekly payments order is not available to the exempt employer.

17 Senior counsel for the applicant with his usual eloquence and assiduity urges upon me the fact that to the extent that Professor Bauze's opinion depends upon various radiological and diagnostic tests such as MRI Scans CAT Scans etc - that could all have been obtained earlier had the exempt employer so chosen to be so informed as at the date of the determination or very close to it, the determination must face the test of "could not reasonably have been discovered at the time the original determination was made".

18 Further, had the exempt employer been in any doubt about compensability the time it made its determination, it could have made interim payments pending the results of its investigations.

19 Further this is not a case that would attract the categorisation adopted by the Full Supreme Court Dela Flora v Workers Rehabilitation and Compensation Corporation [1998] SASC 6691 (26 May 1998) being in the category of cases where a decision is made for the sake of promptness rather than on the basis of a full examination of the facts. Indeed the facts were fully examined up to the August 2000 and provided no grounds for a redetermination.

Nothing turns on the semantics of the letter of determination ie "completed our ... enquiries".

20 Mr Crawley reminds me that this is an application for summary judgment. The fact that there is no answering affidavit put on simply means that I am entitled to accept the facts as set out in the supporting affidavit. It does not mean that at a trial some evidence could be led that would show that the it would bring the case within s 53(7a)(c) either on the basis that the information was not available and/or could not reasonably have been discovered by due enquiry at the time that the original determination was made.

21 The test to be applied is whether there is any issue to be tried either of fact or law.

22 Without in any way impinging upon what might happen at the trial of this point it is quite clear that where the issue of "reasonableness" is raised, then that will be a question of fact. It is a central question in s 53(7a)(c) disputes that the respondent is entitled to adduce such evidence the, and is not compelled to adduce it at this preliminary stage. The fact that the respondent does not choose to adduce it now, does not mean it does not exist and will not be adduced.

23 I cannot be satisfied that there is no real issue to be tried. I dismiss the application.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.