CITATION: Daley v Queen Mary Club [2013] TASSC 25

FROM: [2012] TASWRCT 53

Workers Compensation - Proceedings to obtain compensation - Appeals, judicial review and stated cases - Nature and scope of appeal - Appeal relating to point of law.

Workers Rehabilitation and Compensation Act 1988 (Tas), s63.

Judgment Number: [2013] TASSC 25

1 The appellant suffered an injury to her knee when she fell at her workplace, the Queen Mary Club, on 11 May 2011. There is no dispute that, at the time of the fall, the appellant had a significant pre-existing arthritic condition. She was aware that, at some stage, as a result of that condition, she would probably need knee replacement surgery. The appellant made a claim for compensation as a result of the fall. The Club's insurer ("the respondent") accepted the claim.

2 On 25 July 2011, the appellant had knee replacement surgery. Shortly prior to that, she submitted a claim to the respondent for some medical expenses referrable to the then anticipated surgery. By a letter dated 21 July 2011, the respondent gave notice to the appellant that, pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s77AA(1)(b), it disputed liability to pay those expenses, and did not pay them. The appellant could have, by reference to the Act, s77AA(5), within 60 days of receiving that notice, referred the issue of the disputed medical expenses to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). She did not do so. Instead, on 21 October 2011, she referred the matter to the Tribunal under the Act, s42. The appellant conceded at the hearing of this appeal that, had she proceeded by reference to s77AA(1)(b), the onus would have been on the respondent to satisfy the Tribunal the appellant was no longer entitled to payment of medical expenses whereas, because the appellant proceeded under s42, the onus fell on her to satisfy the Tribunal she was entitled.

3 By a notice dated 11 November 2011 accompanied by a medical certificate by a Dr Harvey dated 8 November 2011, the respondent gave notice pursuant to the Act, s86(3), of its intention to terminate weekly payments to the appellant. On the same date, it made a referral to the Tribunal pursuant to the Act, s88, by which it sought a review of the weekly payments being made to the appellant.

4 On 21 November 2011, the appellant made a referral to the Tribunal pursuant to the Act, s86(4), disputing the termination of weekly payments.

5 There were therefore three referrals and all were heard by the Tribunal at the same time. By a decision delivered on 21 January 2013, the Chief Commissioner, Mr Carey ("the Commissioner") dismissed all three referrals. The appellant has now appealed that decision insofar as it relates to the dismissal of the s42 and s86 referrals.

6 Sections of the Act particularly relevant to this matter are ss49(2), 75(1)(a) and 86:

(a) the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and

(b) the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer.

75 Additional compensation for medical and other services

(1) If this subsection applies to an employer of a worker, the employer is, subject to this section, liable to pay as compensation to the worker or his dependants -

(a) the reasonable expenses necessarily incurred by the worker as a result of his injury for medical services, hospital services, nursing services, constant attendance services, rehabilitation services, household services, road accident rescue services and ambulance services; and

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 -

(c) an accredited 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

(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.

(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. "

(1) If any party to a proceeding before the Tribunal is aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law, that party may appeal to the Supreme Court.

(2) An appeal under this section shall be instituted, heard, and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act."

8 The importance of the nature of an appeal in this case is that counsel for the respondent submitted that the grounds of appeal do not disclose an appeal "in point of law", but are simply challenges to findings of fact made by the Commissioner which cannot be the subject of appeal.

9 There were two grounds of appeal. Ground 1 related to par[23] in the Commissioner's decision. This paragraph provided:

"23 It is determined therefore that in her fall at work the worker suffered an injury that could be described as a non-specific soft tissue injury or general exacerbation of the underlying degenerate disease. The Tribunal is not satisfied that the symptom increase precipitated by this fall would not have resolved or at least substantially lessened in time as described by Dr Harvey. Dr Harvey stated that he undertook the surgery 'for her arthritis' and not for the fall at work as he expected the effects of that fall to resolve or lessen. This he says was an opinion based upon his experience, he conceded that there was no scientific data to support him and that the time might vary but he did not resile from his opinion that based upon his clinical experience the symptoms would resolve."

10 The ground of appeal in relation to par[23] was in the following terms:

"That the learned Chief Commissioner erred in law in paragraph 23 of the Reasons for Determination by finding that he was not satisfied that the symptom increase precipitated by the fall would not have resolved or at least substantially lessened in time when the onus was on the Respondent to establish that any such symptom increase would have resolved."

11 The error of law identified by counsel for the appellant in par[23] was that the Commissioner reversed the onus of proof. It was, he submitted, for the respondent to establish that the symptoms of the appellant would have resolved, and not for the appellant to establish they would not. The error, counsel submitted, was apparent from the second sentence of par[23] which is summarised within the ground.

12 This ground seems to arise from the Commissioner's consideration of the referral by the appellant pursuant to the Act, s86(4). That referral arose because the respondent gave notice of its intention to terminate weekly payments. That intention was based on a medical certificate by a Dr Harvey pursuant to s86(1)(c) in which he certified that the appellant had:

"... wholly or substantially recovered from the effects of the injury in respect of which the payment of workers compensation are being made to the worker or that the worker's incapacity is no longer due wholly or substantially to the injury suffered by her in the course of her employment."

Dr Harvey further said in his certificate that he was of the view that the appellant's knee would have recovered to its pre-injury state three months following the fall without the need for knee replacement surgery. He also said that he considered that, if the appellant had not had her knee replacement surgery, her knee would have returned to its pre-injury state "by this time". The certificate was dated 8 November 2011.

13 The onus fell on the respondent to prove, by reference to the Act, s86(1)(c), that:

- the appellant had wholly recovered, or substantially recovered, from the effects of the injury in respect of which payments were being made, or

- the appellant's incapacity was no longer due, wholly or substantially, to that injury.

14 At par[11] of his reasons, the learned Commissioner correctly identified what the primary issue before him was. He said:

"11 The primary issue for the Tribunal to determine is whether or not the worker as at the date of the Section 86(1)(c) certificate (8 November 2011) had in fact:

• Wholly or substantially recovered from the effects of the injury she suffered at work; and/or
• Her incapacity at that time was no longer due wholly or substantially to that injury."

15 Having identified the primary issue, the Commissioner also recognized that he needed to be satisfied as to whether there was a causal connection between the injury and the knee replacement surgery. He said at par[12]:

"12 There appears no doubt that the symptoms and incapacity being suffered by the worker as at 8 November 2011 were as a result of the knee replacement surgery that she had undergone. It follows, as explained by Dr Harvey, that her injured knee was not a direct cause as it had been removed and replaced by an artificial prosthesis. Therefore, in order to determine the issues before the Tribunal a determination needs to be made as to whether or not the knee replacement surgery was necessary and as a result of the worker's knee injury. If so, the causative link is maintained from injury to operation to post-operative effects. The same determination will resolve the Section 42 referral concerning the payment of the disputed medical expenses relating to the surgery."

16 The Commissioner then reviewed the medical evidence, which included evidence from Dr Harvey and Dr Francis. It is obvious from that review that the Commissioner accepted the evidence of Dr Harvey. The Commissioner said at par[22]:

"22 Such description is of a self-limiting intensification synonymous with that predicted by Dr Harvey. Given that no specific injury could be identified by either Dr Harvey or Dr Francis it is inferred that the radiological study showed no damage that was inconsistent with what might have been expected in a significantly osteoarthritic knee. The Tribunal is not satisfied that the fall caused physical or structural damage to the worker's knee so as to accelerate or deteriorate the underlying condition and of itself to create the need for surgery to be conducted when it was."

17 Having made the finding in the last sentence of par[22], the learned Commissioner then said in the second sentence of par[23]:

"The Tribunal is not satisfied that the symptom increase precipitated by this fall would not have resolved or substantially lessened in time as described by Dr Harvey."

Counsel for the appellant has focused on that sentence to assert the error of law he relies on. However, with respect, all that the Commissioner was doing was making a finding of fact based on Dr Harvey's evidence. The crucial finding for the purpose of the s86(1)(c ) referral was actually in par[25] where it is perfectly clear that the Commissioner has not reversed any onus. He there said:

"That being the case the Tribunal accepts that worker had wholly or substantially recovered from the effects of the injury she suffered at work as that injured knee had been removed, or alternatively any incapacity suffered as at the date of the certificate was no longer due wholly or substantially to that injury."

18 I have not taken time to review the law relating to what is or is not an error in point of law. I am not satisfied that what the appellant has identified by this ground is any more than a challenge to a finding of fact. If I am wrong as to that, then I am not satisfied that any reversal of onus has been identified by the appellant. This ground of appeal should fail.

19 Ground 2 of the appeal related to par[25] of the Commissioner's reasons which was in the following terms:

"25 Accordingly, the Tribunal is not satisfied on balance that the knee replacement surgery was necessarily incurred as a result of the work incident. It follows that her symptoms and incapacity following the surgery were no longer as a result of the work incident, but rather that surgery. That being the case the Tribunal accepts that worker had wholly or substantially recovered from the effects of the injury she suffered at work as that injured knee had been removed, or alternatively any incapacity suffered as at the date of the certificate was no longer due wholly or substantially to that injury. In addition the Tribunal is not satisfied that the knee replacement surgery was as a result of the work injury and the costs therefore were not necessarily incurred as a result of that the work injury. There will be orders dismissing all three referrals."

"That the learned Chief Commissioner erred in law at paragraph 25 of his Reasons for Determination in applying a test that the knee replacement surgery was necessarily incurred as a result of the work incident rather than that the knee replacement surgery resulted from the work injury."

21 The error of law identified by counsel for the appellant in relation to par[25] was that the Commissioner had misdirected himself in that he added a test of "necessarily incurred" to that of "a result of", and then considered that test by reference to a "work incident" rather than a "work injury". Counsel for the appellant focused on the first sentence of par[25] as containing the misdirection. The Commissioner said:

"25 Accordingly, the Tribunal is not satisfied on balance that the knee replacement surgery was necessarily incurred as a result of the work incident."

22 For the purpose of the s42 referral, the Commissioner needed to be satisfied that there was a causal connection between the knee replacement surgery and the injury the worker suffered in May 2011. That arose from the wording of the Act, s75(1)(a), which required any compensable expenses to be "necessarily incurred ... as a result of the injury". The Commissioner dealt with that at par[12] of his reasons.

23 The Commissioner determined, at par[22], that there was no such causal connection. Absent that causal connection, there could not possibly be a finding that any expenses referrable to the knee replacement surgery were "necessarily incurred ... as a result of the injury".

24 Notwithstanding that, counsel for the appellant still submitted that, as a consequence of the misdirection he had identified, the Commissioner had not correctly considered the causal chain between the work injury and the surgery and the incapacity for the purpose of either the s86 or s42 referrals.

25 In par[24], immediately preceding the sentence which was asserted to contain the misdirection, the Commissioner referred to some evidence of Dr Francis and made it clear that he did not accept that evidence. He then made the statement at par[25] which is criticized. However in the fourth sentence of the same paragraph, the Commissioner went on to say:

"In addition the Tribunal is not satisfied that the knee replacement surgery was as a result of the work injury and the costs therefore were not necessarily incurred as a result of that work injury."

26 With respect, the critical words were clearly a finding of fact arising from the evidence the Commissioner had just canvassed. The Commissioner was re-enforcing the lack of causal connection between the surgery and the injury. It is perhaps unfortunate that, when he did so, he mirrored the wording of s75 when it was unnecessary to do so.

27 With respect, counsel for the appellant was looking for errors where none occurred. The Commissioner's reasoning in his judgment is clear. He found that the surgery was not a consequence of the injury, and therefore the expenses referrable to that surgery could not be a result of the injury. That he used the word "incident" instead of injury at one point and that he used the words "necessarily incurred" as a result of the incident as set out above does not alter the thrust of his decision or indicate that he misdirected himself in any way. This ground must also fail.