Workers Compensation - Assessment and amount of compensation - Cessation of payments - Particular grounds - Recovery of worker - Medical certificate - What constitutes - Sufficiency of identification of injury.

Workers Rehabilitation and Compensation Act 1988, s86(1)(c).

Hawkins v Mercury Walsh Pty Ltd A22/1996 (unreported, available on SCALE), applied.

Hansen and Yuncken (Tasmania) Pty Ltd v Gardner A26/1996 (unreported, available on SCALE), approved.

SLICER J The employer seeks review of an order made by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") which upheld an objection as to the validity of a certificate issued by a medical practitioner, pursuant to the Workers Rehabilitation and Compensation Act 1988, s86(1)(c) ("the Act").

2. The respondent had suffered injury on 14 January 1993 and 5 January 1994, the combined effects of which resulted in the payment to him of benefits in accordance with the Act. On 28 April 1994, the respondent was examined by a medical practitioner who, on 7 June 1994, certified that the worker had wholly recovered from the effects of the injuries. The appellant gave notice of intention to terminate payments in accordance with the Act, s86(3) and, by notice dated 28 July 1994, the matter was referred to the Tribunal in accordance with s42.

3. The certificate was issued by a medical practitioner who, after setting out his qualifications, stated:

"... that I did examine Philip Mason on the 28th of April, 1994. I

understand Mr Mason is in receipt of workers compensation in relation

to the combination of the effects of an injury that he sustained on

the 14th of January, 1993 to his left shoulder and as a result of a

motor vehicle accident that occurred on the 5th of January, 1994 in

which Mr Mason claims he suffered injuries to his lower back, his neck

and head.

I examined Mr Mason in respect to each of his complaints and I am of

the opinion that he has wholly recovered from the effects of the

injuries mentioned above that occurred on the 14th of January, 1993,

and on the 5th of January, 1994. The grounds of my opinion are as

follows:

In respect to Mr Mason's complaints of dizziness, he has had two CT

scans of the brain which show no abnormality. There are no other

objective signs to suggest any injury which could cause his dizziness.

With respect to his complaints to his neck, Mr Mason has a full range

of movement. The CT scans show a small abnoramlity (sic) at C6/7 on

the right side. However, Mr Mason complains of pins and needles in

his left arm and weakness in his left arm. Those complaints are

inconsistent with the small abnormality. He has no right-sided

weakness which would be consistent with such an abnormality. He has

full power in his upper limbs. The CT scan of the cervical spine also

was taken on the 8 th of January, 1994 and shows that the abnormality

was not due to his car accident that occurred on the 4 th of January,

1994. It is clearly a pre-existing problem.

With respect to the injury to Mr Mason's left shoulder I have had the

opportunity of reading the report from Dr Gary Fettke, orthopaedic

surgeon.

The effect of the tear is not such as to prevent Mr Mason to return to

his normal duties. In addition, when the area that Mr Mason indicated

to Mr Fettke that the pain was coming from was injected, his pain

moved approximately ten centimetres, indicating that the pain is not

organic in nature.

There are no abnormalities with respect to Mr Mason's arms or thoracic

area.

In respect to Mr Mason's lower back injury, there is a small bulge at

L5/Si (sic) disc. The bulge is within normal limits and there is no

nerve root compromise. Upon testing and upon the tests conducted by

Dr Fettke, Mr Mason's straight leg raising test is normal. His pain

is not localised over L5 S1. There is congenital sacralisation which

does not cause pain in a back. There is no muscle wasting in either

leg suggesting that there is no nerve root compromise. There is not

(sic) loss of power or sensation or reflexes in Mr Mason's legs

further suggesting that there is no nerve root compromise. There are

no objective signs to indicate any ongoing disability in his back.

Mr Mason has made no other complaints with respect to any area of his

body and in my opinion he is fit to return to his normal duties. He

had wholly recovered form (sic) the affects of the injuries of the

14th January, 1993 to his left shoulder and the injuries of the

5th January, 1994 to his lower back, neck and head in respect of which

compensation is being paid."

4. The Tribunal concluded (950/1994) at 5 that "this certificate does not comply with the requirements of the Act because it fails to identify the injuries and their effects" on the basis that it adopted "what was said by Zeeman J in Lawless v Hazell Bros (Lawless v Hazell Bros Pty Ltd A30/1995) as to the test to be applied citing Gibsons v Jeffrey (supra) (Gibsons Ltd v Jeffrey (1993) 2 Tas R 375) with approval - see page 3." The determination made by the Tribunal was published on 22 January 1996 and, accordingly, the Commissioner did not have the advantage of being able to refer to the decisions of the Full Court in Hawkins v Mercury Walsh Pty Ltd A22/1996 (unreported, available on SCALE) or of Crawford J in Hansen and Yuncken (Tasmania) Pty Ltd v Gardner A26/1996 (unreported, available on SCALE).

5. The grounds set out in the notice of appeal state:

"1 It held that the Medical Certificate served in pursuance of

Section 86(1)(c) of the Workers Compensation Act 1988 did not comply

with the requirements of the said Act.

2 There was no evidence, or no evidence that a Tribunal acting

reasonably could apply, upon which the Tribunal could properly

determine that the said Medical Certificate failed to comply with the

requirements of the said Act.

3 It failed to determine that the Medical Certificate served pursuant

to S86(1)(c) of the Workers Compensation Act 1988 sufficiently

identified the injury and the effects of the injury in respect of

which the payments of compensation were being made."

The essence of the appeal concerns the issue of whether the certificate sufficiently identified the injury and effects for which compensation was being paid.

"86 (1) ... an employer may ... terminate ... a weekly payment made

to a worker only where

...

(c) a medical practitioner who has examined the worker has certified

that, in his opinion, the worker has wholly recovered ... from the

effects of the injury in respect of which the payment is being made

..."

7. A review of Tasmanian authorities shows that the following propositions have been applied to the effect of the legislative provision.

. Before an employer is entitled to terminate a weekly payment there

must be strict and unequivocal compliance with the prescribed

certification (Burgess v Umina Park Home for the Aged (1993) 2 Tas R

246).

. A certification expressing an unequivocal belief that there has been

recovery, affords compliance with the provisions. Possible

ambiguity expressed elsewhere in the material comprised within the

certificate, ought not, by means of a textual approach, supplant

such an expression of unequivocal belief (Burgess v Umina Park Home

for the Aged (supra)).

. Reference simpliciter to an injury at work on a particular day is

insufficient compliance since there may have been a number of

injuries so suffered whilst "the central question is whether or not

any such injury or injuries in combination produced the incapacity

for which the worker was seeking weekly payments" (Osmond v Kemp

and Denning Ltd A44/1993 per Wright J at 5).

. A medical practitioner may express an opinion based on material

received other than by means of a direct examination provided that

such an examination was conducted by the certifying medical

practitioner (Guthrie Pty Ltd v Sherriff [1994] TASSC 25; (1994) 3 Tas R 399).

. The certificate should state that the medical practitioner has

addressed his or her mind to the relevant incapacity and has formed

an opinion as to recovery in relation only to that injury and its

sequelae (Gibsons Ltd v Jeffrey (supra)).

. The Act, s86(1)(c) does not deal with all circumstances in which an

employer may terminate a weekly payment on the basis of the worker's

medical condition. It cannot be used as a vehicle to establish the

absence of original injury (Lawless v Hazell Bros Pty Ltd (supra)).

. A relevant injury may be identified by reference to symptoms,

although each case will turn on its own facts. The certificate

should identify the injury in respect of which compensation has been

paid, the effects of that injury and express an opinion as to

recovery (Hawkins v Mercury Walsh Pty Ltd (supra)).

8. In Hansen and Yuncken (Tasmania) Pty Ltd v Gardner (supra), Crawford J upheld the validity of a certificate made in accordance with the Act, s86(1)(c) which provided (inter alia) that in the opinion of the examining medical practitioner, the worker had "... wholly recovered from the effects of his acute lower back injury said to have occurred at work on the 14th July, 1993 in respect of which he has been receiving weekly payments of compensation." His Honour observed that the provisions of the Act, s86(1)(c) do not require the certificate to identify the effects of the injury. I observe however that since the medical practitioner must certify an opinion that the worker has recovered from the effects of such injury, it is necessary to identify those by reference in some way to the original event giving rise to entitlement. His Honour held the view at 3 that:

"It is plain therefore that par86(1)(c) is not concerned with whether

the worker has wholly or substantially recovered from all the effects

of the injury, but only whether the incapacity which arose from the

effects of the injury and which gave rise to the current entitlement

to weekly compensation has wholly or substantially ended thereby

justifying termination or reduction of the payment of the weekly

compensation. If a medical practitioner who has examined the worker

certifies that the worker has wholly or substantially recovered from

that incapacity, or from those incapacitating effects of the injury,

then termination or reduction is authorised."

"... a certificate which does not identify the effects of the injury

in respect of which the payment of weekly compensation is being made,

but which adequately identifies the injury itself, should not be

regarded, for that reason alone and in every case, as necessarily

invalid for the purposes of s86(1)(c). My reason for so concluding is

that the paragraph, and therefore the law, does not require a

different conclusion. The question which arose in this case was

whether the document in evidence, when regarded on the facts and in

the circumstances of the case, amounted to a certificate under par(c).

It sufficiently identified the relevant injury as the respondent's

"acute lower back injury said to have occurred at work on the

14th July, 1993 in respect of which he has been receiving weekly

payments of compensation". It then revealed, in essence, that upon

examining the respondent the medical practitioner could find virtually

no incapacitating symptoms or signs of injury in the lumbosacral

spine. It adequately explained (the grounds) that for that reason the

practitioner was of the opinion that the respondent had wholly

recovered from the effects of the injury. In my opinion the document

plainly amounted to a certificate under s86(1)(c) and entitled the

employer to terminate the weekly payment. It then became a matter for

the respondent, if he wished to do so, to dispute the termination by

referring the matter to the Commissioner for determination."

9. It is not necessary, for the purpose of this appeal, to consider whether Crawford J's disinclination to follow what he regarded as the obiter dictum of Underwood J in Hawkins v Mercury Walsh Pty Ltd (supra) as to whether the certificate must identify the effects of the injury, since I am satisfied that the certificate which is the subject of this appeal, complies with either test. If that be incorrect then I would be inclined to adopt the approach taken by Crawford J.

10. The Tribunal determined at 3 - 4 that the certificate contained:

"... a number of paragraphs which constitute what are claimed to be

the grounds for the opinion for whole recovery from the effects of

injuries to the lower back, neck and head. The effects of those

injuries can only be those effects that are addressed in the grounds

of opinion according to the certificate, but it is unclear from the

certificate whether they are the effects of the injury to the worker.

The certificate does not state what the effects of the injuries were

that the worker suffered on the 14th of January 1993 and the 5th of

January 1994."

The Tribunal concluded that the reference to a tear in par6 caused difficulties because:

"... The effect of this tear is not such as to prevent the worker from

returning to his normal duties. It has to be assumed that refers to

the left shoulder as that is the area of the body that is being

discussed in the paragraph immediately before the sixth paragraph. It

is a little ambiguous, however, as to what this tear refers to because

it is not mentioned to be an effect of the injury sustained on the

14th of January 1993. It is stated in the certificate that that is

when the left shoulder was injured, but there is no mention as to what

the extent of those injuries were or what their effects were. Even

giving the certificate a fair reading and allowing for the fact that,

in the second paragraph, the doctor states that he has examined the

worker in respect of each of his 'complaints' and then addresses those

complaints, it is still uncertain from the certificate, in my view,

whether all of these complaints are the effects of the injuries

sustained. Even if they are it is hard to see how the certificate

addresses the complaint in relation to the left shoulder save and

except to assume that the complaint is pain. One must also make that

assumption with the lower back injury and, to a certain degree, the

neck injury, although there is a specific mention of a complaint of

pins and needles in the left arm or weakness in the left arm."

The Tribunal concluded that the certificate did not comply with the requirements of the Act because it failed to identify the injuries and their effects. The certificate identifies two occasions of injury and ascribes to each a particular form and nature. On 14 January 1993, the respondent suffered injury to the left shoulder and on 5 January 1994, further injuries to the lower back, neck and head. The medical practitioner expressed the opinion that the respondent had recovered from the effects of the injuries so identified. The entitlement had arisen by virtue of the combined effects of such injuries. The medical practitioner expressed the opinion that the respondent had recovered from the effects of the injuries so identified. No other parts of the body were identified as being subject to injury. The opinion of the medical practitioner was formed after examination of each of the injuries referred to. By a process of elimination, he purported to exclude the existence of injury from the brain, head, (no other objective signs of injury) neck, left arm and shoulder and lower back. His finding of a pre-existing condition was irrelevant to the effects of injury in respect of which entitlements were being paid. His reference to the presence of "a tear" was a consequence of the material contained in the report of the orthopaedic surgeon. He was entitled to attach the report (Guthrie v Sherriff (supra)) and it may have been appropriate to do so. But in any event, he was of the opinion that its extent afforded a basis for concluding recovery so as to preclude incapacity. His conclusion was that the worker had wholly recovered from identified injuries. The opinions expressed in the certificate may have been susceptible to challenge. The respondent was entitled to have that matter referred for determination in accordance with the Act, s86(4), but that does not affect the basis for the rejection of the certificate.

11. The Tribunal erred in concluding that the certificate did not comply with the statutory provision. No separate issue is raised in this appeal by ground 2 of the notice of appeal. Assuming that it seeks to raise a different issue, then such is not relevant to these proceedings. Ground 2 will be dismissed, whilst grounds 1 and 3 are made out.

12. The appeal will be upheld and it will be ordered that the order of the Tribunal made on 14 February 1996, be set aside and that the reference be remitted to the Tribunal for determination in accordance with law.