Camburn v Holden [2002] SAWCT 20

"53(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 -

(a) the redetermination is necessary to give effect to an agreement reached between the parties to an application for review or to reflect progress (short of an agreement) made by the parties to such an application in an attempt to resolve questions by agreement; or

(b) the claimant deliberately withheld information that should have been supplied to the Corporation and the original determination was, in consequence, based on inadequate information; or

(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; or

(d) the original determination was made as the result of an administrative error and the redetermination is made within two weeks of the making of the original determination; or

(e) the redetermination is made in prescribed circumstances."

1. It is agreed in this case that the second redetermination was made pursuant to the power in s 53(7) and s 53(7a)(c).
2. In Anderson v Arnott's Biscuits Ltd (supra) I analysed s 53(7) and 53(7a)(c). I said "Analysis of s 53":-

"17 The proper construction of s 53(7a) is free from direct authority.

1. 18 S 53 is the last of three sections within Div 8 of Pt 4 of the Act. Pt 4 is headed Compensation. Div 8 deals with notices of disability and claims for compensation.
2. 19 S 51 deals with the obligation to give a Notice of Disability.
3. 20 S 52 deals with the form, content and time for a Claim for Compensation.
4. 21 S 53 deals with the determination of a claim that has been made.
5. 22 S 53(1) s 53(2) and s 53(3) invest the compensating authority with wide powers of investigation, largely at its own discretion, to enable it to come to a proper and informed decision whether or not to accept a claim.
6. 23 S 53(4) proposes expedition in the decision making process, although it does not actually impose a time limit.
7. 24 In the event of a delay the worker can resort to an application pursuant to s 97 to have a decision expedited. Likewise the Compensating Authority is empowered by s 116 to make interim payments without prejudice to its final determination.
8. 25 S 53(5) provides for notice to be given of the determination.
9. 26 S 53(6) provides for the reasons to be given in the event of a rejection. S 53(7) gives the Compensating Authority power to redetermine a claim in an appropriate case.
10. 27 S 53(7a) came into the Act via Act 49 of 1994. It came operative on 1 July 1994 (for a case dealing with the retrospective operation of s 53(7) and 53(7a) see O'Brien v South Australia (1994) 63 SASR 175 where a useful historical summary is set out at 177).

28 A redetermination is appropriate in four classes of case.

b Where the claimant deliberately withheld information that should have been supplied and the original determination was based on inadequate information.

c Where there is new information see the text quoted above

d To correct an administrative error (ie a slip rule provision).

1. 29 S 53 presents a simple and clear code to dispose of claims for compensation as expeditiously as possible. It gives the power to investigate - but it enjoins prudent expedition and protects both the claimant and the Compensating Authority from unnecessary delay.
2. 30 S 53(7) gathers up the classes of cases that are exceptional or anomalous.
3. 31 Its philosophy seems to be analogous to the obligations of upmost good faith imposed upon an insured at common law in its dealings with an underwriter.
4. 32 S 53 in general and s 53(1), s 53(2), s 53(3), s 53(7) in particular have as their foundation the proposition that in a claim situation most of the pertinent information is initially largely in the hands of a claimant. The prudent administration of the fund requires that appropriate investigation should take place before a claim is accepted and paid.

1. 42 The 1994 amendments, inserting s 53(7) provide for the anomalous claim where the determination already made does not reflect the real position of the parties. This purpose of s 53(7a) is seen perhaps in its clearest form in s 53(7a)(e). One of the appropriate cases is "the redetermination is made in prescribed circumstances". In fact those circumstances have not yet been prescribed. Nevertheless s 53(7a)(e) is there to enable other anomalous circumstances to be dealt with if and when they arise without the necessity of an amendment to the Act.
2. 43 The purpose of s 53(7a)(b) and s 53(7a)(c) is to correct the anomaly of the compensating authority making a determination on a false basis - a basis that is either created wilfully (b) or accidently (c).
3. 44 The section is not in the Act as a substitute for the ordinary dispute resolution process that is generated by rejection under s 53(3)(b) and is followed through by s 90, s 90A and s 90B.
4. 45 Nor it is in the Act as a substitute for s 36 with its built in protection. I have no need to repeat what fell from the former Chief Justice in Mitsubishi Motors Australia Ltd v Frank Sosa S5084 FC 8 June 1995."
5. I adhere to the analysis I proposed in Anderson's Case (supra).

18 A redetermination pursuant to s 53(7a)(c) must pass these tests:-

(ii) The new information was "not available" (at the time of the original determination).

(iii) The new information could not "reasonably have been discovered by due inquiry at the time that the original determination was made".

(iv) The redetermination must in any event be "appropriate".

1. Each of the four conditions must be met.
2. (i) "New information"

I take new information to refer to information that exists at the time the original determination is made. That construction of s 53(7a)(c) would then be congruent with s 53(7a)(b) ie deliberately withheld information - ie information that presently exists but is withheld.

Both subsections imply that the "information" existed at the time the original determination was made.

It is not the same as "in existence but not communicated to the compensating authority" unless it was not available to the compensating authority. It is a question of fact.

(iii) "Could not reasonably have been discovered" etc.

This is a question of fact. If it could not have been discovered it passes the test. If it could have been discovered the question then becomes whether it was reasonable for the compensating authority not to have discovered it.

This is a protean word. It implies the exercise of a discretion. Ultimately it is a question of fact on which minds will differ. The criteria I use to reach a conclusion as to whether a redetermination is "appropriate" includes:-

(a) s 85 that "The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms."

(b) The objects of the Act as set out in s 2. Of particular interest is s 2(1)(a)(iii) and s 2(1)(a)(iv).

"To establish a worker's rehabilitation and compensation scheme: that provides fair compensation for employment related disabilities" and "reduces the overall social and economic cost of the community of employment-related disabilities".

"S 2(1)(b) to provide for the efficient and effective administration of the scheme; and

S 2(1)(b)(f) to reduce litigation and adversarial contests to the greatest possible extent."

1. It is useful to note that Mr Saies had his first consultation with the applicant on 11 May 2000 - prior to the original determination.
2. The opinion on which the respondent now relies to support the second redetermination of 11 December 2001, is dated 13 November 2001. That opinion of Mr Saies is based on consultations of 11 May 2000 and 28 June 2000 ie 18 months and 15½ months after the consultations.
3. In his report of 28 June 2000 Mr Saies expressed the opinion that the causal relationship between the employment and the applicant's disability (a right shoulder) could not be attributed to the applicant's employment as at 28 June 2000; ie the applicant's "current symptoms" to the extent that the applicant was then unfit for work, were not generated by the employment.
4. In the certificate of 13 November 2001 Mr Saies says:-

"I hereby certify that on 11 May 2000 and 28 June 2000 I examined Daryl Scott Camburn. I was informed that the worker reported to have suffered a compensable disability, namely injury to his right shoulder at work on 31 March 2000.

I hereby certify that the worker has ceased to be incapacitated by the compensable disability for work.

If I accept that Mr Camburn suffered an injury at work on 31 March 2000, it can only have been in the nature of an over use injury. In that case, cessation of the particular activities would result in resolution of the symptoms within a few weeks of stopping such activities. Thus Mr Camburn would have ceased to be incapacitated by any work related disability by mid-April 2000."

1. The second redetermination made consequent upon that, is dated 11 December 2001. The essential parts are:-

Par 4 sets out the content of Mr Saies reports of 19 October 2000, 13 November 2000 and 23 January 2001 which reiterates the opinion of the author set out in his original report of 28 June 2001. The above reports were not tendered to me.

"Mr Saies has provided a certificate dated 13 November 2001 stating clearly and unequivocally that you have ceased to be incapacitated by any compensable disability. A copy of that certificate is enclosed.

In the circumstances, we consider that the decision of the Full Bench of the Workers Compensation Tribunal and the further opinions and certificate of Mr Saies constitute new information which was not available and could not reasonably have been discovered at the time the original determination was made and accordingly this is an appropriate case to redetermine your claim.

Having done so, we have determined that your claim should be accepted for income maintenance and/or reimbursement of medical, chemist or other expenses for a closed period only from 31 March 2000 to 14 April 2000."

1. The question for decision is whether in the light of the above facts, the opinion of 13 November 2001 is capable in law of supporting the second redetermination by the compensating authority dated 11 December 2001.
2. As a first preliminary point I say that the issue in this case is whether the applicant at the material time:-

(ii) did the disability arise out of or in the course of the employment.

1. At par 30 and 32 of the Full Tribunal judgment Daryl Camburn v Holden Ltd [2001] SAWCT 126 my learned colleagues said:-

"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.

1. 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.
2. 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."
3. The issue is the causation of the applicant's disability at the time of the determination ie 18 May 2000. Dr Cullum and Mr Saies are diametrically opposed on this point.

"Mr Saies: (28.6.2000) His current symptoms cannot be attributed to the events described on 31 March 2000.

Dr Cullum: (12.5.2000) There does not seem to be any significant likelihood of this being anything other than a work injury".

1. A second preliminary point and it may well be the critical point, is the content of Dr Saies certificate of 13 November 2001 (which has been quoted above).
2. The only difference between that opinion, and the opinion expressed on 28 June 2000 is that on 28 June 2000 Mr Saies' view of the cause of the disability as at 28 June 2000 was that:-

(ii) Such work relationship as had existed, was "only temporary".

1. Mr Saies' certificate of 13 November 2001 certifies a closed period expiring "mid-April 2000".
2. The first redetermination accepted the claim for the closed period only from 31 March 2000 to 14 April 2000. The second redetermination for a closed period only from 31 March 2000 to 14 April 2000. Ie the relevant parts of the determination were identical.
3. Hence Mr Saies' opinion has not changed. "Only temporary" has been changed to mid-April 2000. Ie the work related cause for the disability in the right shoulder ceased from mid-April 2000.
4. It therefore follows that the 13 November 2000 opinion of Mr Saies is not on any view "new information". It is the identical "information" that grounded the first redetermination. As that was held by the Full Tribunal not to be "new information" it follows inexorably that the employer has no ground upon which to make a second determination.
5. That is really the end of the matter.
6. In deference to the fact that this matter has now been on foot for 18 months (the Notice of Determination was filed 5 September 2000) and in deference to the time and effort in preparation expended by both counsel to date, I propose to deal with the matter on the alternative basis that the views expressed above by me are incorrect.
7. The preliminary question then is whether multiple redeterminations are possible under s 53(7).
8. In my view there is nothing in the section prohibiting multiple redeterminations. Each would have to clear the four hurdles set out above. The decision on whether a second, or a third or fourth redetermination "is appropriate" is a question of fact.
9. Is the Saies opinion of 13 October 2001 "new information"?
10. The respondent relies on three bases.
11. The first being Sola Optical Australia Ltd v Mills [1987] HCA 57; 163 CLR 628 at 639 held in relation to an application for an extension of time under s 48(3)(b)(i) of the Limitation of Actions Act, there has to be some relationship between the ascertainment of the material fact and the plaintiff's decision not to sue. Importantly, an opinion that was material to the assessment of damages might qualify as a material fact.

(i) The fact that an "opinion" may be a material fact for the purposes of the Limitation of Actions Act does not mean that "new information" as used in s 53(7a)(c) of the Workers Rehabilitation and Compensation Act can be satisfied by an "opinion".

(ii) The legislation under consideration in Solar Optical is fundamentally different from the legislation in this case.

(iii) The argument is at best one from analogy. It fails because the two situations are not analogous.

(iv) The respondent relies upon the ordinary meaning of "information". I accept that "information" is not a word of art. It should be given its normal usage. The meaning suggested by the respondent in the Shorter Oxford Dictionary at 1364:-

"Information 3 Knowledge or facts communicated about a particular subject, event, etc; - intelligence, news."

I do not find that persuasive. An "opinion" is not mentioned as a category of information.

1. I have derived no assistance from the Hansard report of the Second Reading speeches on the Amending Bill. This issue is simply not addressed.
2. I am not persuaded that the section embraces a "further opinion" per se. It might be so construed if further and new facts came to hand upon which a fresh opinion was based. But there is nothing of that here. Mr Saies' knowledge of the facts on 11 October 2001 was identical with his knowledge on 28 June 2000.
3. An opinion is nothing more than an inference drawn from accepted facts. The facts known to Mr Saies on 13 October 2001 were no different from those known earlier. Drawing a different conclusion or inference or refining a previously expressed conclusion or inference is not "new information". Ie substituting "mid April 2000" for "temporary".
4. The employer's second basis is that the new information was "not available" at the time the original determination was made.
5. The employer bears the onus of proof. In this case there was no evidence one way or the other. The "new information" is Mr Saies opinion. The opinion is, that the applicant's disabilities ceased to be work related by 14 April 2000. Mr Saies examined the applicant on 11 May 2000. The original determination was made on 18 May 2000 ie seven days later.
6. It may well be that after the examination of 11 May 2000 Mr Saies held the opinion that the work causality nexus had ceased. We will never know. There is nothing from Mr Saies to tell us what his opinion was on 18 May 2000. It is not to the point to allege that Mr Saies did not come to a conclusion about the employment relationship until 28 June 2000 or 13 November 2001. That is pure speculation. The fact that his report of 28 June 2000 says "Recent investigations of the shoulder reported by Neil Simmons shows etc." is neither here nor there. We are not told whether these investigations confirmed a view already held by Mr Saies, or alternatively the investigations opened up the prospective opinion that became decisive. It does not matter much because we do not have the date of the Neil Simmons radiography.
7. The short answer to this submission is that the respondent has produced no evidence to show that the "new information" was not available on 18 May 2001 no matter how many permutations and combinations of that opinion are expressed in later reports.
8. The employer's third basis is that the "new information could not reasonably have been discovered by due inquiry at the time the original determination was made".
9. The onus of proof is again on the employer. There is no evidence of what attempt was made by the employer on or prior to 18 May 2000 to ascertain Mr Saies' views other than that the employer wrote to him on 11 May 2000.
10. Was there a telephone call, a fax or e-mail to his rooms? If so what was the result? We are not told of this. Presumably, because no effort was made to see if "the information" ie Mr Saies' opinion, was available.
11. A party does not discharge the onus of proof by remaining silent and then inviting the Tribunal to speculate. It may well be that on 11 May 2000 Mr Saies took the view that there was no longer any employment relationship. If he did so - and the probabilities favour that inference just as much as they favour the inference that he did not come to the conclusion until 28 June 2000 or 13 November 2001 - then the employer would clearly fail. It is a matter of failing to discharge the onus of proof.
12. In the light of the above I now turn to consider the issue of whether a second redetermination is appropriate.
13. That is mandated by s 53(7). It is expanded by s 53(7a)(c).
14. The employer submits:-

(i) that the issue of "appropriateness" of a redetermination is a discretion to be exercised by the compensating authority. As such it is not reviewable. This is because the decision to redetermine is no different from the decision to determine in s 53. All that the Tribunal can do is to examine the substance of the dispute.

(ii) if the "new information" is material to the dispute then it follows that a redetermination must be appropriate.

1. As to (i), this is an argument analogous to that advanced by Mr Crawley in WorkCover/Sun Alliance (AMS Engineering) v Toohey [2000] SAWCT 53 in respect of the Corporation's discretionary powers in s 36(1)(g) (discontinuing a worker's weekly payments whilst being interstate). A similar argument that the exercise of the compensating authority's discretion was immune from Review was rejected by the trial Judge. It was further rejected by the Full Tribunal.
2. I also reject that argument because s 53(7) does not say "The Corporation at its absolute discretion may redetermine a claim".
3. In s 53(7a)(c) the "appropriateness" of the determination depends upon "by reason of new information etc".
4. A compensating authority bears the onus of showing "by reason of etc" it is appropriate. If that was not subject to review, the argument would be circular, ie whenever the compensating authority determined a claim relying on new information etc that of itself made the redetermination appropriate. It is circular because it assumes as a given, that which is to be proven.
5. As to the second ground ie "material":-
6. Materiality is one of the indicia of appropriateness and no more. The correct proposition logically is "if the new information is not material the redetermination will not be appropriate". But that does not translate as a matter of logic or law into "if the new information is material it is appropriate".
7. The first ground for concluding that the second determination was not appropriate, is the fact that the respondent has not brought itself within the terms of s 53(7a)(c) for reasons set out earlier in this judgment.
8. In the event that I am wrong in concluding that the matter does not attract s 53(7a)(c) then I would, in any event, hold that it is not appropriate for the compensating authority to redetermine the claim for the second time. The reasons are:-
9. The original determination was made on 18 May 2000. The second determination was made 11 December 2001 some 19 months having elapsed since the original determination. The incident occurred on 31 March 2000. I am of the opinion that the time lapse is contrary to s 2(1)(a)(b) and is not an effective "administration of the scheme".
10. It flies in the face of the requirements of s 53(4) which enjoins expeditious determination of claims.
11. The purpose of s 53(7) is to deal with anomalous cases. When the whole of s 53(7a) is examined it is quite clear that its purpose is not to replace s 53(4) or to revisit s 53(4). Its purpose is to reflect the realities of the position of the parties where the original determination is flawed. S 53(7) is a corrective measure. There is nothing anomalous about this case. It is no more than an ordinary clash of opinion between two doctors.
12. If the employer has suffered misfortune, it is the author of its own misfortune. It did not have to determine the claim on 18 May 2000. It could have resisted the s 97 application on the grounds of seeking the opinion of Mr Saies, the treating surgeon. One may ask what was the purpose of the employer asking Mr Saies for his opinion if the case was to be determined prior to the opinion coming to hand.
13. The rights of the employer could have been protected by a s 36(1)(b) notice ie that the applicant had "ceased to be incapacitated". That is the real issue between the parties. The compensating authority has an obvious remedy provided by the Act.
14. It is now accepted law and beyond argument since Mitsubishi Motors Australia v Sosa (1995) Supreme Court of South Australia S5084 that once an applicant's claim is accepted, s 36 is a code that governs any termination or reduction of weekly payments. To the extent that s 57(7) provides otherwise, its use must be confined to the anomalous and the exceptional and indeed clearly proven case. This is not such a case.
15. I have found in the documents used for conciliation that the compensating authority referred the applicant to Mr PA Humble, an orthopaedic surgeon, for an opinion. The report does not give the date of the referral. The examination and the certificate is dated 27 June 2000. Mr Humble's opinion was that the worker's disability might be partly attributed to a "thoracic outlet" syndrome. The following question was posed to Mr Humble:-

"Q Whether in your opinion the employee's condition was caused or contributed to by the incident at work referred to above.

1. A In view of my answers in question number one, it is difficult to state whether the current symptoms have been contributed to by his work other than from an historical relationship."

1. Mr Humble then certified he examined the worker on 27 June 2000. In answer to the statement, "(b) has there been a reduction in the extent of the worker's incapacity for work by the compensable disability", and the previous statement "(a) that the worker has ceased to be incapacitated for work by the compensable disability", Mr Humble says:-

"Do not really apply(s) as he has not ceased to be incapacitated for normal duties and hours on his presentation. His presentation indicates his current light duties and restricted hours are his maximum."

1. In addition, he said "there has been no improvement. So (b) cannot apply. It appears he has ceased to be incapacitated for work as far as his current light duties and restricted hours are concerned."
2. That is to say, the worker was not fit for his pre-injury duties, but fit for some light duties.
3. What the employer had at the time of the first redetermination, and at the date of the second redetermination, were three opinions. Two supported the worker's position. One opposed it. One of the supporting opinions had been generated by the employer's authority.
4. It is legitimate for the employer to cease paying weekly payments. To do this it had to use s 36. It is neither a proper nor an appropriate use of s 53(7a)(c) to virtually play "pick a doctor". To do so, generates an inference that the employer was either not confident enough of its position to issue a s 36(1)(b) notice, or it wanted to avoid the consequences of s 36(4) if it issued the s 36 notice.
5. Hence I say that the second redetermination was not appropriate even if the employer could make out the grounds in s 53(7)(c) (which it cannot).
6. It is ironic to note that the employer could have brought this matter to a speedy conclusion by issuing a s 36(1)(b) notice on 28 June 2000. It could then apply for an urgent conciliation conference. It could then apply by AFD for the matter to go immediately to judicial determination by the exercise of a Deputy President's powers under s 92D(3). Trial orders would have been made in October/November 2000. The case would have been heard 12 months ago. However the employer chose not to adopt that obvious course.
7. I therefore set aside the second redetermination. I order the employer to pay compensation in accordance with the Act until it is varied in accordance with the Act.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.