Camburn v Holden [2001] SAWCT 126

4 Upon receipt of the notice the employer advised the worker that it intended to defer its determination of the claim pending further investigations and in particular, its obtaining of medical reports from treating doctors.

5 The following day the worker made a request for interim payments pursuant to s 106 of the Act. This was refused.

6 On 18 April 2000 the employer was supplied with a report from Dr Newbury.

7 On 20 April 2000, the employer was advised that Dr David Cullum, a consultant occupational physician, had consulted the worker.

8 At or around this time the employer also became aware that the worker had been referred to Mr Andrew Saies, an orthopaedic surgeon.

9 On 11 May 2000 the employer wrote to Dr Cullum and to Mr Saies seeking medical reports.

10 On 17 May 2000 the employer received a report from Dr Cullum dated 12 May 2000.

11 On 18 May 2000 the worker served upon the employer an application pursuant to s 97 of the Act seeking an expedited determination of his claim for compensation.

12 On that same day, the employer issued a determination accepting the worker's claim for income maintenance and medical expenses.

13 On 4 July 2000 the employer received a medical report dated 28 June 2000 from Mr Saies, as a consequence of its earlier request.

14 On 12 July 2000 the employer purported to redetermine the worker's claim for compensation pursuant to s 53(7a)(c) of the Act so as to accept the claim for a closed period only. In so doing, it relied upon the report of Mr Saies.

15 The terms of s 53(7a)(c) are as follows:-

"(7) The Corporation may, in an appropriate case, by notice in writing to the worker, redetermine a claim.

(7a) For the purposes of subsection (7), an appropriate case is one where -

(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; ..."

16 The employer is an exempt employer for the purposes of the Act.

17 Pursuant to s 63(1)(a) the power to redetermine a claim pursuant to s 53(7) is delegated to the employer. Hence, the reference in s 53(7) to "the Corporation" includes the employer.

18 The matters that have been submitted to this Full Bench to resolve the dispute are as follows:-

1 Is the medical report of Mr Saies dated 28 June 2000 and the opinions expressed therein "new information that was not available and could not reasonably have been discovered by the due inquiry at the time that the original determination was made" within the meaning of s 53(7a)(c).

2 If so, is such a decision by a compensating authority to make a redetermination subject to review by the Tribunal, as well as the substance of the redetermination.

3 If so, in the factual circumstances outlined is the redetermination possible in law.

19 In order to deal with the first of these questions it is necessary for us to set out in some detail material contained in the report of Dr Cullum upon which the original determination was based and the material contained in the later report of Mr Saies.

20 In his report of 12 May 2000 Dr Cullum records that the worker commenced employment with the employer on 23 November 1999 in the employer's paint shop and that he worked without incident until 31 March 2000 when he was working in the engine base spray region and was reaching forward with the spray gun. His report records:-

"He developed pain in his forearm radiating up to his right shoulder and his symptoms continued. He went to the medical centre and was put on light duties for two days and then normal duties but three days later was not happy and went back on to light duties. His symptoms continued through the right posterior chest wall and arm and eventually he came under the care of Dr Michael Ghan as he was he (sic) normal family practitioner. He had not improved unfortunately. His rehab provider at Holden's is Damien Newberry."

21 Dr Cullum then records the worker's account of his symptoms. He noted that the worker complained that he could only sit and stand for a limited time; that he had paraesthesia in an ulnar nerve distribution occasionally; numbness in the median nerve distribution; that his sleep patterns were regularly disturbed and that he was irritable and frustrated. Dr Cullum noted that there was some psychological factors operating.

22 Dr Cullum then records his findings on examination and suggested that there might be a rotator cuff strain or a significant impingement. He said that he arranged for the worker to undertake a diagnostic ultrasound and x-ray.

23 Dr Cullum concluded that the worker had suffered a work injury, and that he continued to be incapacitated although he was hopeful that he would be able to return to work once his claim had been determined and there had been co-ordination with his general practitioner. He noted that the worker needed to see a psychologist and needed physical therapy including medical management.

24 Dr Saies, in his report of 28 June records that he saw the worker twice. The first occasion was on 11 May 2000. The second was on 28 June 2000.

25 In recording his findings on examination on 28 June 2000 Mr Saies said:-

"Examination today revealed marked amplification of pain symptoms on attempts at examining the right shoulder. He was only able to forward flex to 90 degrees without marked pain and obvious voluntary guarding and posturing to prevent pain. Passive motion was full although again with pain through the range. At best as I could assess there were no specific signs attributable to instability or impingement. This aspect of the examination was difficult due to his overall pain levels."

"I am unable to make a diagnosis for this patient's global right upper limb symptom. He may have some form of minor fascial syndrome or complex regional pain syndrome. I am unable to attribute his current symptomatology to the events described on 31.3.00. If he in fact suffered an overuse type condition on that day I would have expected all of his symptoms to have completely settled within a two week or so period from that event. This has not been the case and so some underlying additional pathology that is not work related needs to be implicated in his current presentation. ... It is not likely that any specific treatable cause will be found for his current symptom complex. I have reassured him that it is safe to work within the bounds of reasonable pain and discomfort and it would be appropriate for him to be placed within the factory at Holden's on a job that is much less repetitious and demanding than his previous line duties. With a reasonable period of work hardening, adaptation and acceptance of his condition I am hopeful that Daryl would be able to remain employed at Holden. However if his overall condition deteriorates or does not improve then it may be that he is not suitable in any way for production line duties. This is not to say that these duties have caused the condition and as stated previously at most only temporarily aggravated it in early April. It may be appropriate for Daryl to have some further blood tests to rule out inflammatory arthritis or other conditions."

27 Mr Saies then in answer to a specific question put to him by the employer stated:-

"In my opinion work may have only temporarily aggravated the underlying condition. It is my opinion that his current symptoms cannot be attributed to the events described on 31 March 2000 and that some other as yet undiagnosed condition which is non work related may be impacting on his current level of symptomatology."

28 The employer contends that Mr Saies' medical opinion of 28 June 2000, in the words of the relevant provision, is "information" that was "new" in the sense that the employer was not aware of it at the time of the making of its original determination. It says that it was "not available" at the time of the making of the original determination because it did not in its written form exist. It says that it "could not reasonably have been discovered by due enquiry" at the time of the making of the original determination, in that a request for Mr Saies' opinion had been expeditiously requested. Finally, it was contended that the redetermination was "appropriate" in that Mr Saies' opinion went to the heart of the issue to be determined, he was the treating specialist, and that it was his opinion that the effect of any work related injury was for a closed period only.

29 In our view the resolution of the dispute in this case does not require an extensive exposition of either the circumstances in which it might be appropriate to invoke s 53(7a)(c) or the extent of a review by the Tribunal in respect of the purported invocation of that provision.

30 The invocation of s 53(7a)(c) is clearly predicated upon the ascertainment of "new information" and we are in no doubt that it is within the purview of our review of the purported redetermination to determine as an objective fact whether that prerequisite has been met.

31 Although the word "new" has a variety of different meanings, we think in this provision, it must mean "fresh" and "different" to that information that was known at the time of the making of the original determination in respect of matters that are material to the purported change in the determination.

32 We accept that these are matters of impression and degree, but in our view, there is no material difference between the opinion of Dr Cullum and the later opinion of Mr Saies.

33 Had Mr Saies' opinion comprised of a clear and unequivocal statement that the worker had ceased to be incapacitated as at the date of the making of the original determination, namely 18 May 2000, there arguably may have been scope for the employer to have invoked its powers of redetermination. We do not however need to decide that because that is not how we read Mr Saies' report. His statement that the worker requires a reasonable period of "work hardening, adaptation and acceptance of his condition" is in our view entirely consistent with Dr Cullum's assessment of a persisting incapacity but guarded optimism that a return to work could be achieved.

34 When read in conjunction with the balance of the report, we would not regard Mr Saies' statement that work had only caused a temporary aggravation of an underlying condition as constituting new information so as to provide a basis upon which the employer's powers of redetermination could be invoked.

35 If the employer has become satisfied on the basis of Mr Saies' opinion that the worker has ceased to be incapacitated as a result of the compensable disability, its remedy lies in the issue of a notice pursuant to s 36(1)(b) of the Act.

36 For these reasons, in our opinion, the employer's purported redetermination of 12 July 2000 should be set aside. We order accordingly.