Begovic v WorkCover Corporation/CGU Workers Compensation

Statistics indicate that injuries of this type usually resolve within 6 to 8 weeks and we encourage you to return to any suitable duties as allowed by your medical recovery and as identified by your treating doctor ..."

1. On 7 August 2000 the worker's solicitor responded with a Notice of Dispute in the following terms:-

"1 The applicant worker disputes the determination of the managing agent dated 31st July 2000, which accepts the worker's claim for a closed period only, namely from 22/6/00 to 15/8/00. A copy of the determination dated 31st July 2000 is attached hereto.

1. 2 The applicant worker says that the managing agent has no justification for only accepting his claim for a closed period. The worker says that this tactic of the managing agent is designed to overcome s 36 of the Act.
2. 3 The applicant worker says that this is the second determination for closed period only."
3. On 4 August 2001 the worker lodged a further claim for compensation alleging that the fall which occurred on 6 June 2000 had resulted in injuries to his lower back, head, bilateral hips as well as psychological sequelae. Remarkably the Corporation took eight months to determine the claim. It decided to reject it and this culminated in the second determination that was the subject of the judicial determination that is now also under appeal.
4. The primary submission that was advanced by the worker was that the Corporation's determination of 31 July 2000 comprised of no more than an acceptance of the worker's claim for income maintenance on account of the compensable disability and, to the extent that it purported to prospectively discontinue the worker's weekly payments on account of that acceptance, it was a nullity. Next it was said, that because the Corporation had not properly invoked the provisions of s 36 of the Act, the worker's right to weekly payments of income maintenance was ongoing such that the hearing before the learned Deputy President as to the merits of the worker's application was otiose as was the Corporation's determination of 15 May 2001.
5. For reasons similarly to those expressed by the Supreme Court in Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1998) 49 SASR 585, we do not think that the Corporation's determination of 31 July 2000 can be construed in this way. The Corporation was not purporting to assume liability in respect of the worker's claim on an ongoing basis. The terms of the determination make it clear that it was only prepared to assume liability for a closed period.
6. It is true that the case of Thuy Thi Vu (supra) can be distinguished because that case concerned a determination accepting the claim for a past closed period. We accept that it is arguable that a determination that purports to assume a liability for a prospective closed period might be an invalid determination. However, even assuming that to be so, it does not follow that the worker has an automatic entitlement to weekly payments. If the determination is invalid, then it is a nullity. It follows from that, that it was not a reviewable decision with the result that the Corporation's determination of 15 May 2001 was the critical determination.
7. The circular nature of the argument that the worker puts in this case is similar to that which confronted the Workers Compensation Appeals Tribunal and then the Supreme Court in Moody v Workers Rehabilitation and Compensation Corporation (Crippled Children's Association of South Australia Inc) A50/1995 and on appeal to the Supreme Court S5659 delivered 6 June 1996.
8. Once it is accepted, as we think it must be, that the Corporation's determination of the 31 July 2000 cannot be severed, it then becomes a question as to whether it was a valid decision or not. Just as the Workers Compensation Appeal Tribunal and the Supreme Court held that there was no power under the former dispute resolution regime "to provoke an enquiry before a Review Officer into a non decision" (see Moody Supreme Court (supra) at 4), there is not, in our view, the power under the present dispute resolution process for this Tribunal to make such a ruling here.
9. Because the jurisdiction of the Tribunal in respect of this aspect of this case was contingent upon the Corporation's determination of 31 July 2000 being a reviewable decision for the purposes of s 89A of the Act and because arguably that jurisdiction is challenged by the submissions that the worker's counsel has put to us, we are obliged to satisfy ourselves that we do have jurisdiction. See, for example: Attorney-General (QLD) v Riordan and Others [1997] HCA 32; (1997) 146 ALR 445 at 478; Mineralogy Pty Ltd v National Native Title Tribunal and Others [1997] FCA 1404; (1997) 150 ALR 467 at 473; Rescrete Industries Pty Ltd v Jones and Others (1998) 86 IR 269 at 277 - 278; R v Bleby, Olsson and Stanley Ex Parte The South Australian Public Service Board (No 1) (Teachers Case) (1974) 41 SAIR 887; Cabal v Attorney-General of the Commonwealth (2001) FCA 583.
10. What then of the validity of the Corporation's determination of 31 July 2000?
11. In our view, whether or not the Act contemplates the making of determination that stipulates that weekly payments shall cease on a future nominated date is not particularly to the point. It is quite plain that through its determination of 31 July 2000 that the Corporation was making "a decision on a claim for compensation" as envisaged by s 89A(1)(a). Upon the lodgement of a Notice of Dispute in respect thereof, settlement having not occurred, and the Corporation having determined to limit its liability, the Tribunal was obliged to determine for itself what in fact the Corporation's liability was. If at the conclusion of a hearing in relation thereto the Tribunal was satisfied that the Corporation's liability to pay weekly payments has come to an end, it was obliged to so order, as would be the case if it was satisfied that the Corporation's liability continued.
12. Accordingly, albeit for different reasons, in our opinion the learned Deputy President was right to have rejected the worker's technical challenge to the first determination.
13. In our view the Notice of Dispute filed in respect of the first determination was a sufficient vehicle by which issues of incapacity beyond 15 August 2000 could have been ventilated but given that the second determination related to the originally claimed disability as well as additional alleged disabilities, for all practical purposes it subsumed the earlier determination.
14. We now turn to consider the learned Deputy President's findings and conclusions in respect of the second determination.
15. The worker's case before the learned Deputy President was that he had suffered a compensable disability on 6 June 2000 and that the combined effects of the physical injuries that he then received together with anxiety and depression that had developed as a consequence of them had rendered him incapacitated for work and that the Corporation's contrary determination should therefore be set aside.
16. The Corporation's case before the learned Deputy President was that the worker was a frank malingerer.
17. In approaching the competing cases being urged upon him the learned Deputy President posed for himself the following questions:

1 Did the applicant sustain an injury in the course of his employment?

1. If the answer to the above is in the affirmative, did the applicant suffer a disability arising therefrom?

(b) Did the disability persist after 15 August 2000?

1. If the answer to (b) is in the affirmative, for how long thereafter was the applicant disabled?
2. The learned Deputy President then canvassed the lay and medical evidence that had been presented to him. He stated that the worker's evidence was "marked by exaggeration" and that he would only accept it with "serious reservations". He said that the evidence of Dr Le Page, psychiatrist, that the worker was suffering from chronic pain syndrome, had to be rejected because it was based on erroneous facts. He came to similar conclusions in respect of the evidence of Dr Papps and Mr Albert Russell, both of whom had expressed the opinion that the worker had suffered a disc injury to his lower spine. He said that their opinions were based on erroneous view of the facts and that he preferred the contrary opinions of Dr Thoo and Mr McCulloch, both of whom had expressed opinions to the effect that the worker was not suffering from any abnormality of the spine and that his symptoms were non organic.
3. The learned Deputy President then reached the following conclusions as set out a par 111 and par 112 of his reasons and determined to confirm the Corporation's rejection of the worker's claim. He said:-

"1 The worker's physical disability ceased on or about 15 August 2000 ie broadly the opinions of Drs Thoo, McCulloch and Hall. I reject the views of Mr Albert W Russell, Dr Papps and Dr Le Page to the extent that Dr Le Page expresses an opinion on the physical condition of the applicant.

1. 2 I reject Dr Le Page's opinion on the applicant's psychological and psychological state. I accept the view of Dr Kalnins summarised and expressed at TB 146 which is expressed in the following exchange:-

'MR DOYLE: What I'm proposing to you is that having regard to this man's personal background his work ethic, cultural factors, all the things that go together to make up his personality, this was a sufficient trigger for him to start converting the psychological conflict about his disability into physical symptoms, given that there was - - -.

1. Given that there was some underlying organic problem.
2. No, I wouldn't see it quite as that type of mechanism.'

Hence I reject the thesis that the psychological problems were the basis of or could explain the worker's physical complaints.

1. I accept Dr Kalnins' view that this worker does not have a psychiatric disorder.

Absent a physical explanation for the applicant's symptoms and absent a finding of malingering - it does not necessarily follow that the explanation for the applicant's condition is some undefined psychological disability attributable to injuries that once existed but do not now exist, and therefore the disability arises from the employment.

At the most he has a manifestation of anger, frustration about the Workers' Compensation system. Such disturbances are not compensable see Vanderdoes v WorkCover Corporation/VACC Insurance Worksafe (Seanco Pty Ltd) JD68/1998 and Trinne v WorkCover/MMI Workers Compensation (SA) Ltd (Rexco Pty Ltd) JD57/1999 at 12 - 18."

1. On appeal, Mr Doyle, counsel for the worker, was critical of the learned Deputy President's approach. He said the issue before the learned Deputy President was not one of causation but whether the worker continued to be incapacitated for work as a result of the compensable disability. We reject this submission. It is quite clear that the learned Deputy President considered whether the evidence established an ongoing incapacity for work beyond the period previously accepted by the Corporation and that he concluded that it did not.
2. Next, Mr Doyle contended that absent a finding by the learned Deputy President that the worker was a frank malingerer, the learned Deputy President was compelled to find that he was suffering from some ill defined psychological condition that resulted from the compensable disability. It seems to us that there is no logical reason why this must be so. It does not follow that just because the evidence of a witness is not accepted that this must necessarily translate into a finding that the witness is lying. Or to put it another way, the mere fact that a witness is not expressly found to be deceptive does not mean that the witness' evidence has to be believed. The learned Deputy President had reservations about the worker's credit for reasons which he explained. Doubtless those reservations led him not to accept the hypothesis put froward to explain the admitted discrepancy between the worker's symptoms and physical presentation and the objective clinical signs. He made no error of law in doing so.
3. Mr Doyle took us to various passages of transcript in a valiant attempt to demonstrate that the conclusions reached by the learned Deputy President were wrong. Our difficulty in respect of this is as discussed by the Full Bench in WorkCover/CGU (KC & MR Boult Pty Ltd) v Mitchem [2002] SAWCT 92 at par 22 where it said:-

"Mr Luke's references to selected passages of the evidence demonstrating inconsistencies in the worker's account belies one of the fundamental differences between a trial and an appeal. As McHugh J pointed out in Rosenberg v Percival [2001] HCA 18; [2001] 75 ALJR 734 at 741:-

'Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge...'.

Whilst these remarks were made in the context of an appeal by way of re-hearing and therefore might not be entirely apposite to an appeal limited to a question of law which is what we are dealing with, they are helpful, because they identify the disadvantage that we have in only having the transcript to consider; that disadvantage being our inability to appreciate what impact seeing and hearing the witnesses giving their evidence had upon the learned Deputy President."

1. We are similarly disadvantaged here. It seems to us that in this case the worker's credibility was the critical issue. The learned Deputy President found him to be an unreliable witness. Having reached that conclusion he was entitled to reject the evidence of medical experts whose opinions were clearly contingent upon the accuracy of the information with which they had been provided. No error of law has been demonstrated. The appeal must be dismissed.