Workers Compensation - Assessment and amount - Cessation of payments - Recovery of worker - Medical certificate - Statement of grounds for opinion - Sufficiency of grounds. Workers Compensation Act 1988, s86(2). Osmond v Kemp and Denning A44/1993 (unreported, available on SCALE); South Australia v Migliore (1982) 49 SAIR 190; Papadopoulos v South Australia (1980) 47 SAIR 317, referred to.

ZEEMAN J This is an appeal from a determination and order made by the Workers Rehabilitation and Compensation Tribunal subsequent to the commencement of the Workers Rehabilitation and Compensation Reform Act 1995 whereby it determined in favour of the respondent a reference made by him to the Workers' Compensation Commissioner pursuant to the Workers Compensation Act 1988 ("the Act"), s86(4), as that Act stood immediately prior to the commencement of the former Act.

2. The respondent suffered personal injury by accident in the course of his employment with the appellants on 5 April 1993 and what was described as an aggravation of that injury on 29 June 1993. A claim for compensation was made by the respondent pursuant to the Act on or after the latter date and the appellants commenced to pay him a weekly payment of compensation. That payment was continuing when, on or after 2 September 1994, the appellants gave notice in writing to the respondent, pursuant to the Act, s86(3)(a) of their intention to terminate the weekly payment at the expiration of a period of ten days from the service thereof. The notice was accompanied by a certificate given by an orthopaedic surgeon, Mr R W L Turner. Having been served with the notice and certificate the respondent referred the matter to the Workers Compensation Commissioner. The appellants acted on the service of the notice by terminating the weekly payment. On the hearing of the reference, the respondent submitted that the certificate did not satisfy all of the requirements of the Act, s86. The learned Commissioner who constituted the Tribunal upheld that submission and ordered that the appellants resume making the weekly payment as from the date of termination.

3. Although the learned Commissioner drew the attention of the parties to Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101, the respondent went into evidence first and did so on the question of whether in fact he had substantially recovered from the effects of the injury in respect of which the weekly payment had been made, that being the issue raised by Mr Turner's certificate. I venture to suggest that difficulties are likely to be encountered if a reference is not conducted, as is appropriate, having regard to who bears the burden of proof. I also suggest that where a worker seeks to raise as an issue whether a certificate conforms to the requirements of s86, substantial cost may be avoided by dealing with that as a preliminary issue.

4. The notice of appeal contains the following grounds:

certificate of Mr R W L Turner dated 26 August 1994 did not

comply with the requirements of the Act was wrong in law.

2 The Chief Commissioner misdirected himself as to the

requirements for a valid certificate for the purposes of

Section 86(1)(c) of the Act.

3 The Chief Commissioner erred in finding or holding that

the certificate was ambiguous and therefore did not comply

with the requirements of the Act Section 86(1)(c)."

5. It is appropriate to deal initially with ground 2 which does not relate to the actual terms of the certificate, but asserts an error of law on the part of the learned Commissioner as to legal requirements for a valid certificate under s86(1)(c). The passage appearing in the learned Commissioner's reasons, which the appellants submit discloses the relevant error, is as follows:

"If the legal requirement is that it must be at that time of

examination that the worker has to be certified as being

substantially recovered or wholly recovered, then this

certificate fails that test and in those circumstances leads

me to the only conclusion that I must determine that the

cessation of weekly payments was invalid and should be

restored."

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. Ground 2 is made out but the identification of that error is not sufficient to dispose of the appeal.

8. It is necessary to consider the terms of the certificate and determine whether, upon a proper construction, it satisfies the requirements of s86(1)(c) and (2) as a matter of law. That requires a careful consideration of the content of the certificate. It is in the following terms:

"I, R W L Turner, FRCS, FRACS, FA Orth A, of 153 Davey

Street, Hobart in Tasmania, Orthopaedic Surgeon, certify

that:

I examined Mr Rodney Farrow on 21 June 1994 and have

previously examined him on a number of occasions since he

first came to see me on 17 August 1993 on referral from his

general practitioner.

He presented with a history of having injured his back

initially lifting a refrigerator in April 1993 with an

aggravation of his pain when pushing a palette (sic) of

chips about a month later.

When I saw him I thought that it was unlikely that he had

sustained a major injury to his spine. I thought an early

return to work would be appropriate and although I had not

seen him again at that time, in October 1993 I reported to

TGIO Limited that I would have expected him to be back at

work by then.

I examined Mr Farrow again on 22 February 1994. I noted him

to be overweight. He showed moderate restriction of spinal

movement. His straight leg raising was unrestricted. His

deep tendon reflexes were brisk and equal, although his

right ankle jerk was perhaps a little depressed. His

plantar responses were downgoing. He was further

investigated with a bone scan which was normal.

I saw Mr Farrow again on 8 March 1994 when he told me that

he had been well enough at times to play football.

Following that examination Mr Farrow was investigated with a

CT myelogram which was normal.

At that stage I formed the opinion that Mr Farrow was not

seriously disabled and I believed that a short and intensive

course of rehabilitation would be appropriate with a view to

him returning to the workforce by the end of May 1994. He

continued at that time to complain of back pain for which no

cause could be found.

On 20 April 1994 I reported to Dr Soon at the Douglas Parker

Rehabilitation Centre that my impression of Mr Farrow was

that he was really not too bad, that a firm and intensive

course of rehabilitation was appropriate for him and that he

should be given a fixed time at the end of which he would be

expected to go back to work. I confirmed to Dr Soon that in

my opinion the end of May would be reasonable and I thought

it would be very difficult to justify keeping him on workers

compensation payments beyond that time.

When I examined Mr Farrow on 21 June 1994 he confirmed that

he had done a work related programme at the Douglas Parker

Centre and had also been doing physiotherapy. He still

complained of being "pretty sore" and of aching all over.

He said he had pain in the lower back radiating to the right

leg.

When I examined him I found that he had an almost full range

of lumbar spine movements, straight leg raising was

unrestricted and his deep tendon reflexes were brisk and

equal. He had, perhaps, slightly diminished ankle jerks.

His plantar responses were downgoing.

I formed the opinion that his back had improved clinically

from when I first saw him although he continued to complain

of some back pain. I expected that he would able to resume

some sort of light work in the not too distant future.

Although I thought at that stage that he was, and would be

likely to remain for a further period of a month of (sic)

so, unfit to undertake work which required heavy lifting,

pulling or prolonged periods in a bent or stooped position,

it is nevertheless my opinion that Mr Farrow has

substantially recovered from the effects of the injury that

he suffered to his lumbar spine on 5 April 1993 lifting a

refrigerator and aggravation of that injury on 29 June 1993

pushing a wheeled palette.

The grounds for that opinion are my clinical findings having

examined Mr Farrow on 21 June 1994 taking into account the

history of his injury and my previous observations of him.

DATED this 26th day of August, 1994.

R W L Turner (signed)"

9. I have not found it an easy task to understand just what the certificate was intended to convey. It does not identify the injury in respect of which the weekly payment was being made with sufficient clarity. That may be sufficient reason for concluding that it does not satisfy the requirements of s86(1)(c) (see, eg, Osmond v Kemp and Denning Pty Ltd A44/1993 (unreported, available on SCALE) at 4-5) but I need not express any concluded view as to that because the certificate does not satisfy the requirements of s86(2). That subsection provides as follows:

"(2) A certificate referred to in subsection (1)(c) shall

specify the grounds upon which the opinion expressed in it

is given."

10. The statement of grounds for the opinion as "my clinical findings having examined Mr Farrow on 21 June 1994 taking into account the history of his injury and my previous observations of him" amounts to no more than a statement that the opinion was based on what was found on examination on 21 June 1994, although informed by previous examinations and observations.

11. What was found on that examination was the following:

1 the respondent's back had improved clinically since 17

August 1993;

2 the respondent complained of some back pain.

12. As to the first of those matters, the certificate is silent as to Mr Turner's view as to the actual state of the respondent's back on 17 August 1993 and as his actual clinical findings on 21 June 1994. The statement that there had been a clinical improvement does not amount to a statement of clinical findings. The certificate is silent as to the extent or nature of the improvement. As to the second of those matters, Mr Turner expressed no views in the certificate as to the validity of the respondent's complaint.

13. The statement in the certificate that as at the time of the final examination of the respondent, Mr Turner expected that he "would be able to resume some sort of light work in the not too distant future" can only be construed as an opinion that, as at the time of the examination, the respondent was not fit for work at all and therefore had not then substantially recovered from the effects of the relevant injury. That statement in the certificate, coupled with the statement that at the time of the examination the respondent "was, and would be likely to remain for a further ... month ... unfit to undertake work which required heavy lifting, pulling or prolonged periods in a bent or stooped position", amounts to an expression of an expectation on the part of Mr Turner as at the time of the final examination that, although there then had not been relevant recovery, such recovery would be achieved in a month or so.

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). The present certificate appears to accept that from the time of Mr Turner's first examination on 17 August 1993 until the last examination on 21 June 1994, the state of the respondent's back was such that it could not be said that he had substantially recovered from the effects of his injury. Yet, without any further examination or other material to provide a basis for the opinion that subsequently there had been substantial recovery, Mr Turner certified that there had been substantial recovery on 26 August 1994.

15. It must follow that the real basis of the opinion expressed in the certificate that there had been substantial recovery is that the clinical findings made on 21 June 1994, informed by earlier examinations, observations and findings, led Mr Turner to conclude that such recovery would be achieved in a month or so of the final examination. The question must immediately be asked why that should be so. The certificate is silent on that question. It neither states the clinical findings giving rise to the expectation nor the basis for the expectation. Those matters are the real grounds for the opinion but the certificate does not refer to them. It follows that the grounds for the opinion are not stated in the certificate.

16. In the absence of a statement in the certificate of such grounds, it does not satisfy the requirements of s86(2) and service of a copy of it with a notice of intention was incapable of authorising the termination of the weekly payment being made to the respondent. It follows that, although I do not agree with the reasons expressed by the learned Commissioner, his ultimate conclusion was correct.