Workers' Compensation - Assessment and amount of compensation - Adjustment of benefits and review of weekly payments - After employer has terminated a weekly payment - Whether the Workers Rehabilitation and Compensation Tribunal has jurisdiction to entertain an application by the employer that if the weekly payment is reinstated it be at a reduced rate on the basis that the worker is partially incapacitated only.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss42, 86(1), 88.

Freemasons Homes of Southern Tasmania v Greenwood A41/1996, applied.

Viney v Roney Management Pty Ltd A18/1996, referred to.

Workers Compensation - Assessment and amount of compensation - Cessation of

payments - Particular grounds - Recovery of worker - What amounts to substantial recovery from the effects of an injury - Nature of the matter referred to the Workers Rehabilitation and Compensation Tribunal.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss86(1)(c), 86(4).

Arnotts Snack Products Pty Ltd v Yacob (1984 - [1985] HCA 2; 1985) 155 CLR 171, applied.

Returned Services League of Australia (Devonport Sub Branch) v Garwood

A59/1995; Osborne v EST Hotel Enterprises Pty Ltd (1992) 1 Tas R 318, referred to.

1 That the appeal of the first appellant be allowed.

2 That the determination and order of the Workers Rehabilitation and

Compensation Tribunal dated 1 December 1995 be set aside.

3 That the reference of the respondent, made by application dated

21 March 1994, be re-heard by the Tribunal.

4 That the appeal of the second appellant be dismissed.

5 That the reference of the second appellant, made by application

dated 19 May 1995, be dismissed.

ZEEMAN J The respondent was a worker in the employ of the first appellant. On or about 8 March 1994, whilst the respondent was in receipt of a payment of weekly compensation from the first appellant as a result of an injury suffered by him in May 1993, the first appellant served upon him a notice of intention to terminate that weekly payment at the expiration of ten days of the service of the notice in purported reliance upon the Workers Compensation Act 1988 (as it was then entitled) ("the Act"), s86(1)(c). With that notice there was served upon the respondent a certificate dated 25 February 1994 given by an orthopaedic surgeon, Mr E D McIntyre, in the following terms:

"(1) I am an orthopaedic surgeon and a registered medical practitioner

in Tasmania.

(2) I interviewed and examined Mr Gregory Ernest Barnett at the

request of his employer's workers compensation insurers on the

9th February, 1994. I had previously interviewed and examined

Mr Barnett approximately two months previously.

(3) I was informed by both his workers compensation insurer and by

Mr Barnett that he had claimed workers compensation in May 1993 with

respect to a right carpal tunnel syndrome injury predominantly to his

fingers which had arisen from regular pressure and strain upon

Mr Barnett's hands as a result of using fibreglass spray equipment in

the course of his employment with Gulf Industries Pty Ltd.

(4) As a result of my personal examination of Mr Barnett, and the

history provided to me, I noted that Mr Barnett was a strongly muscled

individual, particularly in his upper limbs. He had a full range of

both active and passive movement of both wrists. His right forearm

measured twelve inches in circumference and his left eleven and a half

inches. He remained tender over the surgical star (sic) on the

anterior aspect of his right wrist. His grip strength by measurement

on his right side was 14 kilograms on his left 16 kilograms. I was

unable to detect any sensory loss. There was no intrinsic muscle

dysfunction in his hands.

(5) I could find very little wrong with Mr Barnett's forearms, wrist

and hands in any physical sense.

(6) Additionally, on the day of my examination of Mr Barnett on the

9th February, 1994 I viewed approximately 45 minutes of video

surveillance of Mr Barnett working under and around a large boat. A

considerable proportion of the time depicted on the video recording

was spent by Mr Barnett working quite vigorously with both arms and

hands underneath the boat. What he was doing appeared to require

considerable and prolonged grip strength.

(7) Accordingly, as a result of my own personal examination of

Mr Barnett, and my viewing of the video, I am of the opinion that

Mr Barnett has substantially recovered from the effects of any injury

he sustained in the course of his employment with Gulf Industries Pty

Ltd in respect of which payments of weekly compensation are being

made. I do accept that after heavy manual work with his hands

Mr Barnett does experience some symptoms of discomfort in his right

wrist. However, taking all matters into account, I am quite satisfied

that he has substantially recovered from the effects of his work

related condition.

(8) The grounds upon which my opinion is expressed are:

(a) My findings on clinical examination which disclose that Mr Barnett

had a full range of active and passive movement of both wrists, and

roughly equal strength in both wrists. He had no sensory loss and

there was no intrinsic muscle dysfunction in his hands.

(b) My viewing of the video surveillance which confirmed my findings

on clinical examination, viz, that Mr Barnett is quite capable of

carrying out heavy manual activities, requiring considerable and

prolonged grip strength, and that the symptoms he suffers following

such activities are not in any way significant."

2. On 21 March 1994 the respondent referred the matter to the Workers Compensation Commissioner pursuant to the Act, s86(4). On 19 May 1995, when the respondent's reference had not yet been heard or determined by the Commissioner, the second appellant, the insurer of the first appellant, made an application to the Commissioner, purportedly pursuant to the Act, s42(1). By that application the second appellant sought that the Commissioner hear and determine the following:

"In the event that the Commissioner determines that the employer's

termination of the weekly payment being made to the worker on or about

the 22nd day of March 1994 was unlawful, then the licensed insurer

seeks a review of the weekly rate payment to which the worker would be

entitled on and from the 22nd day of March 1994 having regard to the

partial incapacity of the worker, his average weekly earnings and the

amount which the worker has been earning since the 22nd day of March

1994 or would have been able to earn since that date."

3. Both applications were heard on 14 August 1995. On 1 December 1995 the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined that the weekly payment should continue and that the second appellant had not discharged the onus of showing that the rate of payment should be reduced. The determination was given effect to by an order "that weekly payments be paid in accordance with the Act from the 24th March, 1994". The appellants have appealed against that order. The order purports to have been made by the Court of Requests at Launceston (Workers Compensation Division), although such divisions had ceased to exist at the time that the determination and order were made. By virtue of the Workers Rehabilitation and Compensation Reform Act 1995, s92 only the Tribunal had the power to make the determination and order. The parties are agreed that they are to be taken as having been made by the Tribunal.

4. Before considering the grounds of appeal, it is appropriate to say something about the very long delay which occurred in having the respondent's reference heard. It was a matter about which the learned Commissioner who constituted the Tribunal expressed concern. The termination of a weekly payment often has the most serious consequences for a worker. As has been pointed out by this Court on other occasions, the Act differs from equivalent legislation in other States in permitting an employer to terminate a weekly payment after the expiration of ten days from notice of intention to do so, notwithstanding that in the meantime the worker may have disputed the employer's right to terminate by referring the matter to the Tribunal.

5. The respondent's reference was the subject of a conference before the Registrar on 31 March 1994, when it appears to have been directed that the matter be listed for hearing. Nothing to that end had occurred when, on 16 May 1994, the respondent wrote to the Registrar enquiring as to a date for hearing. No action appears to have been taken in response to that. On 5 January 1995, the respondent's solicitors asked that a further conference be held. Such a conference occurred on 21 February 1995 when again it appears to have been directed that the matter be listed for hearing, but six more months elapsed before that hearing took place. The policy of the Act is that a worker's entitlement to compensation be determined quickly and efficiently. Part of the rationale for taking the jurisdiction in workers compensation matters away from the courts was to enable that policy to be given effect to. It is ironic that a dispute which requires urgent resolution by this Court will be determined far more quickly than was the question of whether the respondent had an ongoing right to receive weekly compensation.

6. The grounds of appeal which were argued are as follows:

"(1) The Tribunal erred in applying the same interpretation to the

phrase 'substantially recovered' from the effects of injury as it

appears in section 86(1)(c) to that of a 'substantial degree' of

causation for an injury as it appears in section 25(1)(b);

(2) The Tribunal erred in considering itself bound by the obiter dicta

of Zeeman J in Return Servicemans League (Devonport sub-branch) v

Phillip Garwood A59/1995;

(3) The Tribunal erred in failing to determine the issue of whether

there had been a substantial recovery of the Respondent for the

purposes of section 86(1)(c) as an issue of fact, having regard to the

Respondent's injury and whether he could return to, or had the ability

to perform the pre-accident duties of his employment;

(4) The Tribunal erred in failing to determine that the Respondent

could return to and had the ability to perform the pre-accident duties

of his employment;

(5) The Tribunal erred in determining that because the employer's

business had in the past been busier, and might well in the future be

busier than it was at the time of the termination of the Respondent's

weekly payments, or at the time of the hearing that such a

hypothetical possibility justified the conclusion that the Respondent

had not substantially recovered from the effects of his injury;

...

(8) The Tribunal erred in determining that because the Respondent

could not return to his pre injury employment without specific

restrictions on the type and nature of the duties he could perform, or

without the risk of exacerbating his symptoms, that he had not

thereby, on the facts of the case, substantially recovered from the

effects of his injury for the purposes of section 86(1)(c);

(9) The Tribunal erred in concluding that the insurer's application

was made pursuant to section 88 of the Act;

(10) The Tribunal erred in failing to determine the insurer's

application made pursuant to section 42(1) of the Act;

(11) The Tribunal erred in failing to determine, on the insurer's

application pursuant to section 42(1) of the Act, that the

Respondent's partial incapacity for work was such that the Respondent

had no entitlement to weekly payments as the Respondent had the

capacity to earn an amount equal to his average weekly earnings with

the Respondent on and from the date of the termination of his weekly

payments."

7. Grounds 1 - 5 and 8 concern the reference made by the respondent. Grounds 9 - 11 concern the application made by the second appellant.

8. The respondent is a fibreglass fabricator and has worked as such for most of his adult life. He has no other employment or trade skills. A fibreglass fabricator engages in the construction of various fibreglass objects, both from a mould and free form. The work involves waxing and polishing moulds and spray painting colour coats, either manually with brushes and rollers or by the use of an applicator gun. Prior to 1993, the respondent noticed an increasing problem involving his hands. In 1993 he was diagnosed as having bilateral carpal syndrome. By April 1993, the condition had resulted in incapacity for work and the respondent made a claim for compensation pursuant to the Act. Weekly payments commenced and were still being made when the respondent was served with the notice of intention to terminate. On 19 May 1993, the respondent underwent a carpal tunnel decompression to the right wrist. The respondent claimed that this procedure did not result in an improvement in his condition and that, in addition, he developed a loss of power in his arm and hand. Mr McIntyre's opinion was that the procedure had been successful. Substantially, the issues canvassed before the Tribunal concerned the extent, if any, of the disability suffered by the respondent at the time of his examination by Mr McIntyre and on 15 December 1993, when the respondent carried out work on a fibreglass boat for a friend. The respondent was observed carrying out that work and it was recorded by means of a video film which was in evidence before the Tribunal.

9. The Tribunal determined that it had not been established that the respondent had substantially recovered from the effects of the injury in respect of which the weekly payment was being made but that he was not totally incapacitated. One difficulty which I have encountered is in determining just what findings of fact were made by the Tribunal on the crucial question of the extent to which the respondent had recovered from the effects of his injury at the time that Mr McIntyre gave his certificate. That was the relevant time for the Tribunal's inquiry (Guthrie v Sherriff [1994] TASSC 25; (1994) 3 Tas R 399 at 412 - 413, 419).

10. Ground 3 raises as an issue the inadequacy of the Tribunal's findings of fact. It is well established that a court or quasi-judicial tribunal is required to make sufficient findings of fact to expose the reasoning process which led to the ultimate determination (see Australian Securities Commission v Schreuder [1994] TASSC 127; (1994) 14 ACSR 614 at 619 - 620 and the authorities there referred to). Before dealing with ground 3 it is necessary to consider grounds 1 and 2 which concern the legal principles which the Tribunal was required to apply. It is only when those legal principles are properly understood that it is possible to determine the matters as to which the Tribunal was required to make findings of fact.

11. On a reference under s86(4) made where the employer relies on a certificate purporting to satisfy the requirements of s86(1)(c), the functions of the Tribunal are to determine whether the certificate actually satisfies those requirements; whether the employer has established as a fact some or all of the matters contained in the certificate and, if so, which; and whether the facts established justify the termination (Goscombe v Cadbury Schweppes Ltd (1994) 2 Tas R 19; Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246; Guthrie v Sherriff (supra)). In the present case the certificate clearly satisfied the requirements of s86(1)(c) and the respondent did not contend otherwise.

12. The question arises whether there can ever be an occasion for a certificate under s86(1)(c) to justify a reduction of a weekly payment. Although s86(1) speaks of the circumstances in which an employer may terminate or reduce a weekly payment, it ought not to be construed as though each of the circumstances enumerated may authorise either. Section 86(1) provides as follows:

"86 (1) Except in pursuance of a determination made by the

Commissioner 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;

(d) a worker has failed or refused to undertake or participate in a

rehabilitation programme recommended by his employer; or

(e) weekly payments made to the worker during a period of total

incapacity have reached the amount referred to in section 69(6)."

13. The sub-section was expressed in somewhat different terms at the time that the learned Commissioner dealt with the reference, but the differences are irrelevant for present purposes. Paragraph (e) prescribes circumstances which, if established, could only have the effect of requiring a termination of the weekly payment. On the other hand, the circumstances prescribed by par(b) could justify either a termination or a reduction depending on the amount of weekly earnings being received by the worker. Although it is not immediately apparent, the circumstances prescribed by par(a) may justify a termination or a reduction, as appears from Atkinson v Nipper Cleaning Services Pty Ltd A105/1993. That case establishes that where an employer relies on a particular provision of s86(1) which, depending on the facts, may justify a termination or a reduction, the Tribunal, on hearing a reference under s86(4) in a case where the employer has sought to terminate may determine that in the circumstances of the case a reduction is appropriate.

14. Section 69(1) provides for a weekly payment of compensation "where total or partial incapacity for work results from an injury suffered by a worker". I do not consider it consistent with the scheme of the Act to construe s86(1)(c) so that a worker may have wholly or substantially recovered from the effects of the injury in respect of which a weekly payment is being made to that worker but suffer from total or partial incapacity for work resulting from that injury. Sections 69(1) and 87(1)(c) should be read together in the sense that for there to be recovery, either wholly or substantially, from the effects of an injury there must be no incapacity for work, whether total or partial, resulting from that injury.

15. I adverted to that in relation to the other limb of s86(1)(c), namely that which concerns the case where a worker's incapacity is no longer due wholly or substantially to the relevant injury, in Osborne v EST Hotel Enterprises Pty Ltd (1992) 1 Tas R 318 at 328 when I said:

"The primary submission of the respondent was that it may be the case

that for the purposes of s86(1)(c) the incapacity of a worker is no

longer due, wholly or substantially, to the injury giving rise to an

entitlement to compensation by virtue of s25(1), even though in the

terms of s69(1) that incapacity results from that injury. It might be

thought that that would be an absurd result. It would mean that a

weekly payment could lawfully be terminated even though there remained

an ongoing entitlement to a weekly payment under s69(1)."

16. I then proceeded to reject that submission. In Returned Services League of Australia (Devonport Sub Branch) v Garwood A59/1995 I held at 7 - 8:

"For the purposes of s86(1)(c):

(a) a worker has substantially recovered from the effects of an injury

when there no longer are any effects thereof other than effects which

are no more than trivial or inconsequential; and

(b) a worker's incapacity is no longer substantially due to an injury

where the incapacity no longer is causally related to the injury

except to a trivial or inconsequential extent."

17. I adhere to that. Whether a matter is or is not trivial or inconsequential requires a consideration of s69(1). If there is no incapacity for work within the meaning of s69(1) any subsisting effect of the injury is trivial or inconsequential. If there is partial incapacity for work so that s69(1) confers a right on the part of the worker to receive a weekly payment, then the effects of the injury are more than merely trivial or inconsequential.

18. Partial incapacity for work is constituted by reduced physical capacity by reason of physical disability for actually doing work in the labour market in which the worker was working or might reasonably be expected to work (Arnotts Snack Products Proprietary Limited v Yacob (1984 - [1985] HCA 2; 1985) 155 CLR 171 at 178). If there is such partial incapacity, and if it is the result of the relevant injury suffered by the worker, then there has not been substantial recovery. It follows from those conclusions that I reject grounds 1 and 2 but it becomes necessary to consider ground 3.

19. In accordance with the principles governing the requirement that a court or quasi-judicial tribunal state sufficient reasons for its determination, it was incumbent upon the Tribunal to make findings of fact, as at the time that Mr McIntyre gave his certificate, concerning:

1 the labour market in which the respondent was working or might

reasonably be expected to work;

2 the nature of the work required to be performed by persons in that

labour market;

3 whether the respondent suffered from any physical disability for

actually doing such work.

20. In relation to the relevant issues of fact, the learned Commissioner made the following observations:

"The certifying doctor gave evidence in support of his certificate.

This doctor is a specialist orthopaedic surgeon with extensive

experience, in particular concerning carpal tunnel syndrome. He was

cross examined as to his certificate (E1) and agreed that the worker

had initially suffered bilateral carpal tunnel syndrome. He noted

however that nerve conduction tests showed that the operation on the

right wrist had been successful. He says that if one accepts the

worker's complaint of symptoms then you would expect to note muscle

wastage, but there was not any and in fact there was an inconsistency

in that the right forearm circumference was still greater than the

left, although the worker stated he now did more work with his left

arm. He thought that the gripping and use of hand tools and lifting

of the child as observed on the video were inconsistent with the

worker's description of limitation and the measurements he had

conducted of the worker's grip strength.

This doctor had also visited the work place and noted the relevant

work activities and work equipment. The employer also gave evidence

and he explained the nature of the duties expanding upon what I had

already observed during a view conducted in the presence of the

parties and counsel. He confirmed my observation that the spray gun

equipment is in fact very light being supported by a spring loaded

boom arm which also supports the hoses. His evidence was to the

effect that the work did not involve continuous use of the spray gun,

explaining the need to do work in sections, spraying and then rolling

or painting the glass and resin. He also explained how there was a

need when doing large jobs using a mould to wax the mould, spray on

the colour coat and then apply the fibre glass. He explained how he

changed hands whilst using the spray gun and conceded that if he was

spraying continually for lengthy periods of time then your wrist and

forearms did get tired.

...

The worker performed physical duties evidenced on this video which are

inconsistent with his evidence of incapacity, he grips a rasp and over

a significant period of time uses this to shape out a hole in the

bottom of the fibre glass boat. He can lift a young child up from the

ground into the boat by gripping the child's hands. No doubt with the

lay off from work he will have discomfort when returning to work, but

this would not, I believe, be sufficient to totally incapacitate him.

The certifying doctor was an impressive witness, having considerable

experience and he also had the benefit of actually visiting the work

place and observing the work duties and the work equipment and

accordingly is well placed to express the opinion he has.

...

I do not accept that the worker is as incapacitated as he says,

notwithstanding the evidence of his wife. Should he have been as

restricted as he says it is agreed by the medical practitioners in

their evidence that they would expect wasting of the muscles in the

forearm, but there was no evidence of same.

The certifying doctor, however, accepts that, after heavy manual work

or prolonged grip work, the worker would suffer symptoms, but he did

not believe that such symptoms would be significant. If the worker is

physically unable to perform any of the duties of his pre-injury

employment, then he could not be said to be wholly or substantially

recovered from his work injury, but rather would remain partially

incapacitated.

...

In my opinion, a person cannot be said to have substantially recovered

if he still has an incapacity for his work in that he cannot return

without specific limitation or restriction as to what he can or cannot

do or where there is a real risk of aggravating his conditional

symptoms of same by the performance of his work duties. On all the

medical evidence, it is apparent that the worker is unable to return

to heavy manual work and nor work requiring prolonged grip or

repetitive work without the ability to alternate duties. These are

specific limitations on this worker which did not exist prior to his

work injury and which are required as a result of this injury. Having

visited the workplace and heard the evidence of the employer, it can

be fairly described that the work at present is not heavy manual work

and it also provides scope to allow for alternate duties to be formed

in that continuous repetitive work, especially with a spray gun, was

not required, but this is the nature of the duties at this particular

time and I also heard evidence that this business has been in the

past, and might well be in the future, much busier. The amount of

work they had depended upon business that is attracted. The workplace

might therefore become busier or involve a continuous type of work as

it did in the past. The work of a fibreglass laminater in another

employment position might also be much busier than it is at this

particular workplace and one should look at the physical capacity for

this man to engage in the full range of work as a fibreglass

laminater. The certifying doctor was of the opinion that, if the

worker suffered pain whilst doing his work, he would have to go on to

another task for a while whilst the pain resolved. This suggests an

ongoing incapacity in that it imposes a restriction upon the work that

the worker could do. It also raises the question of the status of the

worker if those other alternate duties were not available for him to

move on to.

...

In conclusion, therefore, I am satisfied on the evidence that the

worker has exaggerated his symptoms and his lack of grip strength and

that he has a greater capacity for work than he has suggested.

However, I am not satisfied that he has the ability to return to his

pre-injury employment without specific restrictions on the type and

nature of duties he can perform or without the risk of exacerbating

his symptoms. The undoubted existence of the carpel tunnel syndrome

in his left arm is still unresolved and remains untreated."

21. The parties appeared to have accepted that the relevant labour market was that of a fibreglass fabricator. The learned Commissioner's statement that "one should look at the physical capacity for this man to engage in the full range of work as a fibreglass laminater" suggests that he was conscious of the considerations which were relevant in determining whether there had been substantial recovery. However his reasons proceed upon the assumption that that "full range of work" included work of a heavy nature which, by reason of physical disability, the respondent was incapable of performing. No finding of fact was made that such work was required of those engaged in the relevant labour market and the evidence does not suggest that such a finding was one which should necessarily be made. It was critical to the proper determination of the respondent's reference that careful findings be made as to the nature of the duties required to be performed in the labour market and as to the nature and extent of the physical disabilities, if any, of the respondent affecting his ability to perform the full range of those duties. This was particularly so in the present case where the learned Commissioner was unable to rely on the evidence of the respondent concerning his disabilities.

22. It was not for the Tribunal to embark on conjecture as to what might be required of a fibreglass fabricator at some time in the future. It was required to make actual findings as to what was required at the time that Mr McIntyre gave his certificate, based on the evidence before it, and then to determine whether the respondent suffered from any physical disability affecting his ability to perform the full range of those duties at that time, again upon the basis of evidence. The Tribunal failed to do this and that failure amounts to an error of law. Ground 3 is made out and requires that the reference made by the respondent be reheard. It is unnecessary to consider grounds 4, 5 and 8 because they cannot affect that result.

23. Grounds 9, 10 and 11 concern the reference made by the second appellant. The Tribunal effectively dismissed this application, although without making a formal order to this effect, upon the basis that the second appellant had not discharged the onus of proof. The Tribunal treated the application as constituting a reference under the Act, s88(1) although it purported to be made under s42(1). I do not consider it matters which section of the Act was relied upon. A more fundamental question is whether the Tribunal had any jurisdiction to deal with the application under any provision of the Act. The learned Commissioner expressed some doubts about that but dealt with the application because the parties agreed that he should do so, although before me the respondent argued that the Tribunal had no jurisdiction. It is, of course, trite law that consent cannot confer jurisdiction. I need to deal with the question of jurisdiction because if the Tribunal had no jurisdiction then the reference should not be sent back for re-hearing but should formally be dismissed and the grounds of appeal are irrelevant.

24. Section 86 provides special procedures whereby an employer may terminate a weekly payment being made without the need to obtain an order from the Tribunal. A worker has a right to a continuation of a weekly payment until an employer lawfully terminates pursuant to that section, or the termination is authorised by an order of the Tribunal pursuant to a specific provision of the Act (see Freemasons Homes of Southern Tasmania v Greenwood A41/1996). An employer has the choice. He may rely upon s86 which, in the absence of a reference by the worker under s86(4), may result in there being a termination or reduction without the matter ever coming before the Tribunal for determination. Alternatively, the employer may apply to the Tribunal for an order authorising the termination or reduction of a weekly payment. Section 88 is the provision which expressly so provides and, by force of s86(1), it is only a determination under s88(2) which authorises a reduction or termination of a weekly payment (see Viney v Roney Management Pty Ltd A18/1996 at 3). Section 42 ought not to be read so as to augment the jurisdiction of the Tribunal conferred by s88 because that would be contrary to the clear intention expressed by s86(1). The second appellant was unable to avail itself of s88 because a weekly payment was not being made to the respondent at the time that it made its application (see Freemasons Homes of Southern Tasmania v Greenwood (supra)). It follows that the Tribunal had no jurisdiction to entertain the second appellant's application.

25. If an employer wishes to have a weekly payment reduced on the basis that total incapacity has ceased and there remains partial incapacity for work, then the employer should apply under s88. If an employer asserts that there no longer is any incapacity, it need not utilise s86 but may apply under s88, in which event the Tribunal would need to determine whether there is any incapacity and, if there is, whether it is total or partial incapacity. If an employer takes advantage of s86(1)(c), then it must accept that the consequence of a failure to satisfy the Tribunal that termination is justified will be that it is required to continue to make a weekly payment on the basis of total incapacity even though only partial incapacity remains.

26. The result of my conclusions is that the determination and order of the Tribunal in relation to the reference made by the respondent should be set aside and that it be re-heard. It would be desirable if the Tribunal were to be differently constituted on the re-hearing. I make the following orders:

1 That the appeal of the first appellant be allowed.

2 That the determination and order of the Workers Rehabilitation and

Compensation Tribunal dated 1 December 1995 be set aside.

3 That the reference of the respondent, made by application dated

21 March 1994, be re-heard by the Tribunal.

4 That the appeal of the second appellant be dismissed.

5 That the reference of the second appellant, made by application

dated 19 May 1995, be dismissed.