1. The worker's section 86(4) referral is referred back to a conciliator for continuation of the conciliation process under Div 2 of Part V of the Workers Rehabilitation and Compensation Act 1988.

Workers compensation - Cessation of payments by certificate - Whether certificate is valid - Sufficiency of grounds - Delay in preparation and service of certificate - Whether documents should be annexed to certificate

Workers Rehabilitation and Compensation Act 1988

Mark Alan Gardner v Hansen and Yuncken (Tasmania) Pty Ltd [1996] TASSC 113;

J T Hiscutt & Sons v Moore [2000] TASSC 125;

Emmanuel Klonaris and Mary Klonaris Trading As Cut Price Frozen Foods v Rodney Paul Farrow [1995] TASSC 144;

Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff Judgment [1994] TASSC 25;

Osborne v EST Hotel Enterprises Pty Ltd (1992) 1 Tas R 318;

Richard John Jones v D L and J L Jones [1996] TASSC 140

1. The worker suffered a low back and hip injury on 15 November 2023 (the injury). She made a workers compensation claim. The claim was accepted and the employer commenced weekly payments of compensation.
2. The employer has terminated the weekly payments by a notice and certificate under s 86(1) of the Workers Rehabilitation and Compensation Act 1988 (the Act) and the worker has filed a referral pursuant to s 86(4) of the Act challenging the termination of weekly payments.
3. As a preliminary issue for determination, the worker contends that the certificate is invalid.

1. On 30 April 2024 the worker underwent a medical examination by Dr Jack Dale, an occupational physician. The examination was arranged by the employer.
2. On 3 December 2024 Dr Dale signed a certificate pursuant to s 86(1)(c) of the Act (the certificate).
3. In the certificate Dr Dale certifies that the worker has recovered from the effects the work injury and that any incapacity that the worker suffers from is no longer due to the injury.
4. On 14 March 2025 a notice pursuant to s 86(3) with the certificate was sent by post to the worker by the practitioners for the employer.
5. On or about 3 April 2025 the weekly payments to the worker were terminated by the employer in reliance on the notice and certificate.

1. The worker contends that the certificate is defective on its face and so is invalid. The employer disputes that contention.
2. For the purpose of this determination, no issue arises in respect to the notice or service of the notice and the certificate on the worker.
3. If the certificate is invalid then the worker's right to weekly payments should be reinstated from the date of termination. If the certificate is not invalid then the referral will proceed for determination of the substantive issues arising.

86. Cases in which employer may terminate or reduce payments > > (1) Except in pursuance of a determination made by the Tribunal under section 88 (2) , an employer may, subject to this section, terminate or reduce a weekly payment made to a worker only where - > > (a) the payment is in respect of total incapacity and the worker has returned to work; > > (b) the worker is in receipt of the weekly payment in respect of partial incapacity and is receiving weekly earnings in excess of the amount upon which the amount of such weekly payment was determined; > > (c) a medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury; or > > (d) . . . . . . . . > > (e) a worker's entitlement to weekly payments has expired as provided by section 69B(2E) . > > (2) A certificate referred to in subsection (1) (c) shall specify the grounds upon which the opinion expressed in it is given. > > (3) An employer who, for the reasons specified in subsection (1) (c) , (d) or (e) , intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker - > > (a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and > > (b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1) (c) , a copy of that certificate. > > (3A) A notice referred to in subsection (3) (a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination. > > (4) A worker who has been served with a notice under subsection (3) (a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination. > > (5) An employer who terminates or reduces a weekly payment otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

2. Section 86(1)(c) provides that a medical practitioner who has examined a worker may certify either:
   • that the worker has wholly or substantially recovered from the effects of the injury; or
   • that the worker's incapacity is no longer due, wholly or substantially, to the injury.
3. Section 86(2) requires that a certificate specify the grounds for the opinion expressed by the medical practitioner.
4. The Act does not specify the form of a certificate or provide any further express requirements for a valid certificate.

1. The certificate is divided into parts.
2. Under a heading "Injury and Claim for Compensation" Dr Dale states that he examined the worker on 30 April 2024, and that at that time he was aware that the worker was in receipt of weekly payments in respect to a claim for compensation for a low back and left hip injury suffered on 15 November 2023 in the course of the worker's employment with the employer.
3. Under a heading "Relevant History" Dr Dale sets out a number of aspects of the worker's personal, work and medical history. In respect to the history of the claim, the certificate states the following:

3.8 [the worker] was pushing a tool chest full of tools, weighing an estimated 150kg, up a ramp with two other people. As they lifted then the chest, she felt pain in her lower back and left hip. She informed her coworkers and tried to take a break, but the pain persistent, so she continued working in pain. Upon returning to the warehouse, she experienced pain and paraesthesia in her left lower limb and left hip pain. She informed her boss and then loaded 32 heavy boxes into a truck, had a long drive to Fentonbury from Bridgewater, and unloaded the boxes at the destination before going home. > > 3.9 She returned to work the next day before attending a GP. The first GP did not handle workers compensation, so she was given a normal medical certificate. She continued working without restrictions despite the pain. She later saw a different GP who provided a work cover certificate and referred her to physiotherapy. Eventually, a left hip labral tear, bone bruising, and femoral hernia were diagnosed. An orthopaedic surgeon has suggested some injections, but it is unclear what the target is (presumably the hip). A general surgeon has suggested mesh repair.

4. Under a heading "Current Symptoms" the certificate states:

3.10 On days off, [the worker] feels okay, but if she exerted herself the day before, the pain could increase. The main pain is in the groin, with some left lower backpain and some left SIJ pain.

5. Under a heading "Examination Findings" the certificate states:

4.1 [the worker] has a normal gait and is able to walk on her heels, but walking on her toes caused left "hip pain". She can squat normally but states it feels weak in the left quadriceps. She has normal lumbar flexion, lateral flexion, extension, rotation, and extension quadrants. However, her left hip is painful with all movements, particularly FABER and FADIR tests, which were quite painful. There was spinal and bilateral paraspinal tenderness but no spasms. She has normal tone, power, sensation, reflexes, coordination, and balance. The SLR test was negative. There was no SIJ involvement or gluteal insertion involvement. The femoral hernia was not examined as it was clear from the ultrasound scan that it is present.

6. The certificate then refers to the results of medical imaging and lists documents reviewed by him. It also lists 12 learned articles under the heading "References for Opinion". None of the listed documents or articles were annexed to the certificate.
7. The certificate then sets out the grounds for Dr Dale's opinion under a heading "Summary and Assessment" in the following terms:
   • 8.1 [the worker] presents with non-specific lower back pain (for which she has a history dating back to at least 2015), left hip pain associated with a left hip labral tear and a left femoral hernia.

• 8.2 These are all conditions that have idiopathic or degenerative components and tend to continue to progress overtime. These conditions can be caused by significant trauma, but no such trauma has been described by [the worker].

• 8.3 [the worker] describes a simple mechanism of injury on 15 November 2023 in which she was simply performing her normal work. This is consistent with at most, causing a brief exacerbation of any or all of her conditions.

• 8.4 It is my opinion that on 15 November 2023, [the worker] suffered an exacerbation to her pre-existing and underlying conditions, namely her non-specific lower back pain, left hip labral tear and left femoral hernia at a time that the conditions were already becoming symptomatic due to reduced tolerances. Her employment was the major or most significant factor to those exacerbations at work on 15 November 2023. Such exacerbations are brief and do not change the trajectory of the underlying condition.

• 8.5 These conditions can be exacerbated by the kind of tasks described by [the worker]. However, these are all common at the beginning of the condition becoming symptomatic and generally last a few days to a few weeks at most, with the condition continuing to give symptoms due to its underlying nature. It is common for people to mistakenly attribute causation because of the apparent symptom continuation, however, symptoms would have started regardless and are often a little worse due to the exacerbation from trying to do normal work and other tasks when the condition first manifests.

• 8.6 [the worker] has recovered from the work exacerbations on 15 November 2023. There is no longer any effect from the 15 November 2023 exacerbation and the incapacity is no longer due to the exacerbation of 15 November 2023.

• 8.7 The tasks she was performing are not pathogenic. Although in the past a number of treaters and researchers have adopted a lay approach to causation, confusing association with causation, and suggested that Lifting and other manual handling and can cause these conditions, recent research and systematic reviews of the literature find does not show causation from such exposures.

• 8.8 All of these conditions would have been present for significant amounts of time prior to the onset of symptoms, in keeping with their natural history.

• 8.9 Non-specific back pain is not caused by lifting, awkward postures, twisting or other such physical exposures. An existing condition can be exacerbated by these type of tasks, but such exacerbations typically last only a few days to a few weeks.

• 8.10 In relation to the labral tear, the mechanism of injury on 15 November 2023 would not explain a new labral tear. Labral tears are most commonly degenerative in origin. Although they can be caused by trauma, actual trauma is required, which is not present in this case. Again, physical exposures can exacerbate an existing condition but, again, such exacerbations are brief.

• 8.11 In relation to the hernia, the myth of single event or lifting-related hernia causation has long been debunked by the medical literature. Lifting does not significantly alter intraabdominal pressure. Femoral hernias are relatively rare, accounting for only 3% of hernias. However, they are around 10 times more common in females than in males. Although in the past there has been a hypothesis that they are caused by heavy lifting, this is thought to be due to increase in abdominal pressure. However, in recent studies, lifting has not been found to significantly increase abdominal pressure. Hernias tend to gradually develop and progress over time and in some people become symptomatic. When they become symptomatic, they often cause intolerance to lifting and other physical activities. However, this association should not be confused with causation. It is, again, an example of exacerbation and not causation.

• 8.12 These conditions are best understood as disease processes. For the same reasons explained above, [the worker's] employment was not the major or most significant factor in the development of these conditions.

• 8.13 The ongoing symptoms and incapacity are due to the underlying conditions which were likely imminently symptomatic and that is why she had the exacerbation in the first place.
• 8.14 No further treatment is required for any work-related component as it would have been brief and self-limiting. Treatment is required due to the underlying conditions.

• 8.15 The back pain can be managed with modem active self-management techniques that will allow control over flare-ups and maximise long-term function. The other conditions are generally treated surgically with good outcomes (although labral tears can be treated conservatively at first).
• 8.16 [the worker] has a limited capacity for work as a result of her underlying conditions. All three conditions are associated with reduced tolerances to medium and heavy manual work. She can therefore only attend to sedentary and light manual handling only at present. With successful treatment, Ms Kelly would be able to return to her normal work. However, as she ages, her tolerances for this kind of work may continue to decrease.

(a) [the worker] has wholly or substantially recovered from the effects of the injury she suffered at work on 15 November 2023; and

(b) any incapacity that [the worker] presently suffers from is no longer due, wholly or substantially, to the injury suffered at work on 15 November 2023.

1. Dr Dale concludes by stating that his opinion is based on:

(a) the history provided by [the worker] at the examination on 30 April 2024;

(b) my clinical observations and examination of [the worker] on 30 April 2024; and

(c) review of the documents referred to at paragraph 6 above.

1. A number of factual observations may be made concerning the certificate. The first is the lengthy delays in the preparation and service of the certificate:
   • the certificate is dated 3 December 2024, which is just over 7 months after the examination on 30 April 2024; and
   • the certificate was posted to the worker on 14 March 2025 some 3.5 months after the certificate was signed on 3 December 2024, and almost 12 months after the examination on 30 April 2024.
2. The 16 documents listed in paragraph 6 of the certificate, which Dr Dale says he reviewed for the purposes of his opinion, were not attached to the certificate.
3. The 12 journal articles listed in the certificate as "references for opinion" were not attached to the certificate.

1. The worker identifies three circumstances by which she says that the certificate is deficient. The first is that the documents and articles referred to in the certificate were not attached to it. The worker says that that makes the certificate imprecise, and that the worker must speculate about the unattached documents such that the documents should be attached in order to make sense of the certificate.
2. Secondly the worker says that deficiency arises from the long delays between the examination and the signing of the certificate and the service of the certificate. The worker says that during that entire period weekly payments were made, medical certificates certifying as to ongoing incapacity were provided by the worker to the employer, that the worker underwent other medical assessments both for the employer and the worker, some of which resulted in reports, and the worker had multiple medical attendances for treatment and underwent hernia surgery.
3. The third reason advanced by the worker is that the certificate is imprecise and ambiguous. In this respect, the worker notes that Dr Dale refers to a left labral tear, bone bruising and a femoral hernia being diagnosed, and to the worker presenting with non-specific lower back pain, with a history pre-dating the work injury, and with left hip pain associated with a left hip labral tear and a left femoral hernia. Dr Dale then concluded that those conditions have an idiopathic or degenerative component and, while they can be caused by significant trauma, that no such trauma was described by the worker. Dr Dale considered that the workers description of the mechanism of injury was consistent with, at most, a brief exacerbation of any or all of her conditions. He then concluded that the worker suffered an exacerbation of the pre-existing underlying conditions of non-specific lower back pain, left hip labral tear and left femoral hernia, and that her employment was the major or most significant factor to those exacerbations at work on 15 November 2023 but that the exacerbations were brief and did not change the trajectory of the underlying conditions.
4. The worker says that Dr Dale did not expose his reasoning for so concluding. He does not refer to a history of a labral tear, or a hernia or degenerative conditions prior to the work injury. The worker says that Dr Dale's expressed opinion that the exacerbations were brief and were already becoming symptomatic due to reduced tolerances, and that the exacerbations did not change the trajectory of the underlying condition, amounted to mere speculation. Dr Dale says that those conditions would have been present for significant amounts of time prior to the onset of symptoms, in keeping with their natural history, but the worker contends that no relevant history was obtained or rationale exposed for that opinion. In particular, Dr Dale does not identify the onset or symptomatology of those conditions prior to the date of the work injury.

1. The employer says that although Dr Dale has certified as to both limbs of s 86(1)(c), substantively his opinion goes to the second limb, namely that the worker's incapacity is no longer due wholly or substantially to her injury, and the primary justiciable issue arises in connection with that limb.
2. The employer points out that Dr Dale refers to the worker's injuries as exacerbations. The employer draws a distinction between an 'exacerbation' and an 'aggravation', 'acceleration' or 'deterioration' of her, albeit quiescent, pre-existing diseases. The employer says that the latter incorporate pathological harm while an exacerbation is an increasing or intensification of symptoms of the underlying condition.
3. The employer says that Dr Dale identified in the certificate the underlying conditions, the work injury, and his reasons for concluding that the worker had suffered exacerbations to those underlying conditions and for her recovery from the exacerbations.
4. The employer acknowledges that there might be ambiguity between Dr Dale's statement that the pre-existing conditions were already becoming symptomatic due to reduced tolerances, and his statement that the underlying conditions were likely imminently symptomatic, but on reading the certificate as a whole, in the context of there being no history from the worker that she was symptomatic prior to the injury, the only reasonable interpretation is that the symptomatic exacerbation was imminent.
5. The employer says that the delays in preparation and service of the certificate are of little weight because the exacerbations were by definition temporary. As they do not have any pathological basis, once the worker recovered from the exacerbations there was no prospect of any ongoing relevance such that the opinion that the exacerbations had resolved is valid at any time after the resolution.
6. As to the matter of attaching documents and articles, the employer points out that the Act does not require documents to be attached and to do so would potentially lead to s 86(1)(c) certificates of extreme length that would be onerous and potentially overwhelm a worker with unnecessary voluminous material.

1. In Mark Alan Gardner v Hansen and Yuncken (Tasmania) Pty Ltd [1996] TASSC 113 at [11] Underwood J emphasised that s 86(1)(c) certificates should be construed "in a plain common sense way". At [12] his Honour said that "the words of s86(1)(c) and (2) are simply expressed and no curial gloss should be placed upon them".
2. In identifying the requirements of a valid certificate in J T Hiscutt & Sons v Moore [2000] TASSC 125 Underwood J referred to Gardner v Hansen and Yuncken (Tasmania) Pty Ltd, and said at [5]-[6]:

5 It has been judicially determined that to satisfy the statutory requirements, the certificate must clearly, unambiguously and unequivocally comply with the statutory requirements which I have set out. See Gibsons Ltd v Jeffrey (1993) 2 Tas R 375; Osmond v Kemp & Denning Ltd A44/1993. A certificate will be ambiguous if it does not clearly identify the injury in respect of which weekly payments are being made, and relate that injury to any claimed recovery or ongoing incapacity. See Osmond v Kemp & Denning Ltd (supra) at 4 - 5.

6 The requirements of a valid certificate were examined by the Full Court of this Court in Gardner v Hansen and Yuncken (Tasmania) Pty Ltd [1996] TASSC 113; (1996) 6 Tas R 248. In my judgment in that case, I reviewed most of the authorities in this Court that had dealt with this issue. There is no need to refer to them again. The Act prescribes no formal requirements for a certificate. Provided the certificate:

• clearly and unambiguously identifies the injury in respect of which weekly payments are being made;
• clearly expresses the medical practitioner's opinion that the worker has wholly recovered or substantially recovered from the effects of that injury, or that any incapacity is no longer due, wholly or substantially, to that injury; and
• sets out the grounds upon which the opinion is given;

it will comply with the provisions of s86(2). Certificates are to be construed in an ordinary common sense way and no curial gloss is to be placed on the plain words of s86(1)(c) and (2).

1. At [14]-[18] his Honour said in respect to the sufficiency of grounds in a certificate:

14... It is not the function of the Tribunal to examine the reasoning of the certifier and subject it to legal analysis. The Act, s86(1)(c) and (2) does not provide that the grounds must stand up to scrutiny and legal analysis. If grounds are given and they relate to the opinion and can be understood, then the certificate complies with the statutory prescription enacted by subs(2). It may be that the grounds are so unclear or so ambiguous or so unrelated to the opinion that it might be said that the certificate did not comply with the Act, but that cannot be said about this certificate.

15 In Papadopoulos v South Australia 47 SAIR (Pt 2) 317 at 324, Haese J said:

"All that I am concerned with is whether there appears in the document under challenge a statement of the grounds upon which the opinions certified are based. To my mind if the certified opinion is clear (which it is), unless the stated grounds are so incomprehensible, incompatible with the opinion, irrational upon their face or totally lacking in relevance to the opinion certified (bearing in mind that it is a medical opinion) so as not to constitute grounds supportive of the certificate to which they relate, then it is not for the Court to enter upon a minute scrutiny of the semantics employed in the statement of such grounds."

16 In Golden North Dairies v Hennekam 48 SAIR (Pt 2) 122 at 129, Olsson J said:

"... whilst, in certain cases, the statement of grounds of the opinion of the medical practitioner might, by its very nature, necessarily be so inconsistent with the certification as to invalidate it (eg, by indicating that the medical practitioner has, for example, directed his mind to the wrong injury or that the certification is in relation to total recovery whereas the grounds unequivocally show that there is only partial recovery), in general it is not the province of the Court under this Section to go behind the basic certification and consider the reasonableness or otherwise of the grounds which lead to the certification. ..."

17 In The State of South Australia v Migliore (1982) 49 SAIR (Pt 2) 190 at 195 and 196, Lee J expressed agreement with the statement of Haese J in Papadopoulos v South Australia (supra) and continued:

"... I think that it is sufficient in most cases to enquire first whether the purported grounds are in truth reasons for the opinion and not merely a restatement of the opinion itself and second whether the grounds relate to and are consistent with the opinion."

18 All these cases were cited with approval by Wright J in Osmond v Kemp and Denning Ltd (supra) at 5 as apposite to the provisions of the Act, s86(2). I agree. s

1. As to the expression of the grounds for the opinion in a certificate, in Emmanuel Klonaris and Mary Klonaris Trading As Cut Price Frozen Foods v Rodney Paul Farrow [1995] TASSC 144 Zeeman J said at [14]:

14. Whilst a "certificate does not require a statement of the stages in the intellectual processes which led to the final opinion" (per Green CJ in Guthrie v Sherriff (supra) at 406) a statement of the grounds must in truth be grounds and not a mere restatement of the opinion (South Australia v Migliore (1982) 49 SAIR 190 at 196; Osmond v Kemp and Denning (supra) at 5) and must be supportive of the opinion to which it relates (Papadopoulos v South Australia (1980) 47 SAIR 317 at 324).

1. In respect to the second limb of s 86(1)(c), in Osborne v EST Hotel Enterprises Pty Ltd (1992) 1 Tas R 318 at 330-331 Zeeman J said:

In my view the proper meaning of the expression "incapacity is no longer due, wholly or substantially, to that injury" is that the incapacity is then wholly or substantially the result of a cause other than the relevant injury. Before it is appropriate to terminate a weekly payment under s 86(1)(c) it must be possible to ascribe as the entire or substantial cause of the incapacity a matter or matters other than the compensable injury.

1. In Emmanuel Klonaris and Mary Klonaris Trading As Cut Price Frozen Foods v Rodney Paul Farrow (supra) Zeeman J said at [6]-[7] that certification under s 86(1)(c) is at the time that the certificate is given, not at the time of examination:

6. Despite the way in which the learned Commissioner expressed himself in that passage, it is clear that he proceeded upon the basis that, in order to satisfy the requirements of s86(1)(c), a certificate must be to the effect that at the time of the relevant examination the worker had recovered from the effects of the injury to the requisite degree. The appellants' submission that thereby the learned Commissioner proceeded upon an erroneous basis is well founded. There is no requirement that the certificate must speak of a state of affairs existing at the time that the examination occurs. The certificate speaks as of the date upon which it is given.

7. The proposition that a certificate pursuant to s86(1)(c) must certify to a state of affairs existing as at the time that it is given appears to be clearly established by the decision of the Full Court in Guthrie Pty Ltd v Sherriff [1994] TASSC 25; (1994) 3 Tas R 399. Two members of the Full Court (Crawford J at 412 - 413 and Zeeman J at 418 - 419) expressly held to that effect and the third member of the court, Green CJ, appears to have assumed that to be the position. Provided that the worker has been examined by the medical practitioner giving the certificate and that examination has a sufficient connection with the opinions expressed in the certificate (see Hennessy v The Broken Hill Proprietary Company Ltd [1926] HCA 32; (1926) 38 CLR 342 at 350; Guthrie Pty Ltd v Sherriff (supra) at 421), it may rely on any relevant material going to the state of affairs existing as at the time at which the certificate is given. The learned Commissioner erred by holding that a certificate is to speak of the state of affairs existing as at the time of the examination.

1. It is not clear in that case whether Zeeman J was using the term 'given' to mean the date of the certificate or the date of service. Section 86(3) talks of service of a copy of a certificate on the worker, not the giving of a certificate. In Klonaris his Honour refers to his decision in Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff [1994] TASSC 25. It is clear from his Honour's reasons at [2]-[3] of that case that he distinguished between the giving of the certificate by the medical practitioner and the service of the certificate. Certification under s 86(1)(c) is therefore at the time that the certificate is completed.

1. It is convenient to deal with the worker's contentions in reverse order.

1. As to the issues of ambiguity and sufficiency of the grounds expressed by Dr Dale, the certificate is to be construed in a plain common sense way: Mark Alan Gardner v Hansen and Yuncken (Tasmania) Pty Ltd (supra) and J T Hiscutt & Sons v Moore (supra).
2. The claim for compensation form refers to a low back injury which occurred on 15 November 2023. The worker's medical certificate current at the date that the s 86(4) referral was filed described broader effects, being "Light hip pain a Left SIJ pain (lower back pain)". The diagnosis given in the medical certificate is "Left hip labral tear, Left SIJ dysfunction, left femoral hernia". Although Dr Dale's certificate does not expressly refer to SIJ pain it identifies low back pain and each of the other conditions. Dr Dale expresses the opinion that the injury to the worker was the exacerbation of underlying conditions and explains why he reaches that conclusion, albeit with some ambiguity as to whether the underlying conditions were asymptomatic or the symptoms were nascent. I consider that that uncertainty goes to the merits of Dr Dale's opinion rather than creating an ambiguity that is fatal to the certificate.
3. Dr Dale also explains why he considers that the exacerbations have resolved and why the worker's complaints reflect the underlying conditions, so as to explain that those conditions are the cause of the worker's incapacity. Dr Dale reaches the conclusion that the entire or substantial cause of the worker's incapacity is caused by conditions other than the injury and explains why that is the case by reference to the usual course of such injury.
4. Dr Dale may well be wrong about any of these matters, but they are set out in the certificate in a manner that enables the worker to understand that he has identified the work injury, formed the opinion that the worker has recovered from the injury such that her ongoing problems are caused by identified underlying conditions other than the injury and that his opinion is derived from his understanding of the causes of the underlying conditions and the expected recovery periods for the exacerbations. Using the formulation of Underwood J in J T Hiscutt & Sons v Moore, Dr Dale gives grounds which relate to his opinion and which can be understood. Any flaw or deficiency in Dr Dale's grounds for his opinion is a matter for consideration of the substantive issue of whether his opinion is correct, not whether the certificate is valid on its face.

1. The second issue relates to the timing of the examination, certification and service. Applying the approach of Zeeman J in Emmanuel Klonaris and Mary Klonaris Trading As Cut Price Frozen Foods v Rodney Paul Farrow (supra) and Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff (supra) the relevant time of certification of recovery is the date of the certificate, 3 December 2024. There is no explanation as to why there was a substantial delays between the examination on 30 April 2024 and the date of the certificate, or between the date of the certificate and the date of service in March 2025.
2. The right to terminate payments is in reliance on the certificate is conditional on service of the certificate. The certificate and service of it must comply with s 86(1)(c) and (3)(b). There are no time limits or requirements to act promptly in the section in respect to preparation of a certificate or service of it. In respect to the requirements of a valid certificate set out in s 86, delay does not invalidate a certificate.
3. While it is conceivable that there may be a worsening of an injury subsequent to an apparent recovery of capacity or alternative cause for incapacity, say as a result of the natural progress of the injury or its treatment, it is not contrary to logic that a certification under either limb of s 86(1)(c) is as to a permanent state of affairs. Reading the certificate as a whole it is apparent that Dr Dale's opinion is that the injury to the worker was the temporary aggravation of underlying non-work conditions and that the effects of the temporary aggravation have resolved. His opinion does not leave open the possibility of fluctuation in the effects of the injury. In this case the delay does not affect the grounds expressed in the certificate, or the ability to understand them.
4. The worker did not assert any particular prejudice arising from the delays, for example any consequential difficulties in respect to preparing her case in response to the certificate. At some point delay might result in reliance on a certificate being procedurally unfair to a worker, but that is not the case in this instance. Any apparent prejudice from the delays in this case would fall on the employer who continued to pay the worker weekly payments during the periods of delay.

1. The remaining criticism of the certificate is that it does not annex the documents Dr Dale listed in the certificate. The certificate states that Dr Dales's opinion is based on the history provided by the worker, his examination of her and review of the documents listed in para 6 of the certificate. Those documents, as listed, are:

a) Claim Form dated 17 November 2024; > > b) Initial workers compensation medical certificate dated 16 November 2023; > > c) Incident report dated 15 November 2023; > > d) Initial notification of injury report dated 16 November 2023; > > e) Section 33A notice of right to make Workers compensation claim dated 16 November 2023; > > f) Letter from Mr Rob Bohmer to GIO dated 4 March 2024 regarding insurance approval request for surgery; > > g) Bundle of Workers Compensation Medical Certificates; > > h) Non-workers compensation medical certificate dated 21 November 2023;

1. Initial Needs Assessment report dated 8 December 2023;

j) MRI Report left hip report dated 4 January 2024; > > k) Ultrasound left Groin dated 14 February 2024;

1. Letter from Dr Michael Pritchard (Orthopaedic Surgeon) dated 12 April 2024;

m) Bundle email correspondence between Rehab, GIO and Employer from 25 January 2024 to 5 March 2024; > > n) Document titled 'Back Pain' from Queensland Health; > > o) Return to Work and Injury Management Plan No. 7; > > p) GP records from Kutalayna Health.

2. Except for the MRI and ultrasound, none of those documents are specifically referred to by Dr Dale in his findings or his opinion. His opinion and the grounds for the opinion are apparent without the need to consider any of the listed documents.
3. In respect to the journal articles, Dr Dale does not state that his opinion is based on those articles and does not refer to or quote from any of them, but his opinion includes general statements as to the aetiology and course of the conditions of the worker identified by him which might well have been informed by those articles.
4. The Act does not require that source material, even material such as radiological reports which might be crucial to an opinion, accompany a certificate. The employer pointed to observations of Zeeman J in Richard John Jones v D L and J L Jones [1996] TASSC 140, where his Honour was critical of a large amount of irrelevant material contained in a certificate that added to confusion arising from mis-ordered pages. At [6] his Honour said:

Those responsible for preparing certificates for the purposes of s86(1)(c) should bear in mind what the law requires of such a certificate and refrain from including irrelevant material resulting in the certificate containing much more than a statement of an opinion and the reasons for the opinion.

1. The certificate would still address the requirements of s 86(1)(c) if it contained no reference to the documents and the articles. It identifies the injury, expresses Dr Dale's opinion that the worker has wholly or substantially recovered, from the effects of the injury or that the worker's incapacity is no longer due, wholly or substantially, to that injury, and sets out the grounds for that opinion. Understanding those grounds does not require consideration of the documents and articles informing Dr Dale's clinical reasoning.

1. The matters raised by the worker may well be relevant to the question of whether the opinion expressed by Dr Dale is correct, but do not make the certificate invalid.
2. The referral should return to the usual conciliation process under the Act. I direct that:
   1. The worker's section 86(4) referral is referred back to a conciliator for continuation of the conciliation process under Div 2 of Part V of the Workers Rehabilitation and Compensation Act 1988.