2 Order dismissing appeal from the Workers Compensation

Commissioner set aside and in lieu thereof orders that:

2.1 the appeal from the Workers Compensation Commissioner

allowed;

2.2 the determination of the Workers Compensation

Commissioner set aside.

3 The reference made by the respondent to the Workers

Compensation Commissioner be remitted to the Commissioner

to be determined according to law.

GREEN CJ This is an appeal from the dismissal of an appeal against a determination of the Workers Compensation Commissioner. The first appeal purported to be against a determination made by Commissioner Sikk but in fact it was made by Commissioner Hemming but nothing turns on that as there is no question of what determination was the subject of the appeal. The materials before the primary judge include the following statement of agreed facts:

"1 At all material times the Respondent was employed by

the Applicant as a Textile Mechanic.

2 On the 13th day of August, 1991, the Respondent, in the

course of his said employment claims to have fallen and

as a consequence claims to have suffered grazing,

bruising to his kidneys and partial prolapse of the L5/S1

disc with accompanying soft tissue injury.

3 The Respondent made a claim for workers compensation

based on the claims made in paragraph 2 herein. The

Appellant accepted that compensation claim and paid to

him and on his behalf compensation in accordance with the

provision of the Workers' Compensation Act 1988.

4 The Respondent received weekly payments of compensation

from the 13th day of August, 1991 to the 10th day of

June, 1992.

5 As a consequence of the said injuries the Respondent

has been certified by his treating medical practitioner

to be:-

(i) totally incapacitated for work for the periods;

13th August, 1991 - 19th April, 1992 and

12th October, 1992 - 9th November, 1992

(ii) partially incapacitated for work for the periods;

20th April, 1992 - 11th October, 1992 and

10th November, 1992 to date and continuing

6 On the 29th day of May, 1992 the Respondent was served

with Notice and certificate pursuant to Section 86(3)(a)

and (b) of the Workers' Compensation Act 1988."

"NOTICE

TO:

Mr D Sherriff

3 Levey Court

DEVONPORT TAS 7310

TAKE NOTICE that at the expiration of ten clear days from

the service upon you of this notice, Australian Weaving

Mills intends to cease weekly payments of compensation

heretofore made to you. This notice is served pursuant

to provisions of Section 86(1)(C) of the Workers'

Compensation Act 1988.

Dated this 29th day of May 1992.

Australian Weaving Mills )

Tasman Street )

DEVONPORT TAS 7310 )

..............................."

"CERTIFICATE GIVEN UNDER SECTION 86(1)(C)(2) OF THE

WORKERS COMPENSATION ACT, 1988

This is to declare that on the 19th February, 1992 I, Dr

E D McIntyre being a medical practitioner registered in

Tasmania, examined Dean Sherriff.

As a result of this examination, I certify that Dean

Sherriff has substantially recovered from the effects of

the injury sustained on 13th August, 1991.

The grounds for this opinion are:

(Handwritten) The fact he was only able to manage a

limited range of flexion of his spine at my surgery this

is in complete contrast to his back manoeuvrability seen

on video surveillance arranged by your company. Other

reasons given in my report of 4/5/92.

Signed: E McIntyre"

3. The report referred to in that certificate dated 4 May 1992 was served on the respondent with the certificate. The report read:

"May 4, 1992

Tasmanian Government Insurance Office,

PO Box 130,

LAUNCESTON, 7250

Attention: Mrs A Curbishley

Dear Mrs Curbishley

re: Dean SHERRIFF

I viewed approximately 38 minutes of video surveillance

taken at your request of the alleged subject in an (sic)

around his home. This surveillance shows him to be able

to fully and apparently painlessly move his back in all

directions. He repeatedly bent fully to 90 degrees,

picked up children and some other objects of medium

weight. He was also able to bend sideways without any

restriction or apparent pain and he was able to twist

freely. In addition he was able to remain in the 90

degrees flexed position for a minute or so at a time.

Also he could maintain a half bent position for an

extended period of time.

I can find no evidence of any restriction on the part of

this man to use his back. The surveillance was taken on

the 10th and 11th April so it is obviously current.

It is ten weeks since my report was forwarded to you so

he has either made a dramatic recovery since I saw him or

he was grossly exaggerating his symptomatology when I saw

him.

I would have no hesitation in clearing him for work on

the evidence of this video surveillance.

Yours faithfully

E D McIntyre"

4. The respondent wished to dispute the termination of weekly payments and pursuant to the Workers Compensation Act 1988, s86(4) he referred "the matter" to the Workers Compensation Commissioner. On the joint application of the parties the Commissioner agreed to determine as a preliminary point the question raised by a submission by the respondent that:

"... the certificate that was served upon the worker from

the medical practitioner certifying a substantial

recovery from the effects of the injury was not in

accordance with the requirements of the Act, and

therefore there had been an invalid termination of the

worker's weekly payments of compensation."

5. The Commissioner held that the certificate accompanying the notice of termination did not comply with s86(1)(c) and (2) of the Act and determined "that the purported termination" of weekly payments was invalid. The grounds for the Commissioner's finding that the certificate did not satisfy the requirements of s86 were that it contained the following ambiguities:

"In this particular case the purported certificate by the

medical practitioner is prefaced in paragraph 2 in the

certificate by the words 'as a result of this

examination'. Paragraph 3 is prefaced by the words

'grounds for this opinion are'. Paragraph 3 relates to

paragraph 2 and should be read together with it. The

subsequent viewing of a video surveillance film appears

to be the grounds which constitute the major reason why

the medical practitioner has certified substantial

recovery. The ambiguity present in such a certification

must be apparent. In my view the ambiguities may be

summarised as follows:-

1 If it was meant to mean that the grounds for the

opinion are the subsequent viewing of the video

surveillance film then it does not say that.

2 If it is meant to mean that the reference to the

limited range of flexion in the spine at the surgery

relates to the examination on the 19th February 1992 then

it does not say that.

3 Has the doctor changed his opinion as a result of

viewing the video surveillance film or did he hold the

same opinion all the way through?

4 The grounds for the opinion continued in paragraph 3 of

the certificate are inconsistent with the opinion

expressed in paragraph 2 of the certificate."

6. I agree with the view of the learned primary judge that the certificate must be read with the report. I also agree with his Honour's conclusion that the Commissioner was incorrect in concluding that the certificate failed to satisfy the requirements of s86 because it contained what he characterised as the four ambiguities set out above. I accept that the matters referred to in 1 and 2 were not explicitly stated but they are plainly to be inferred. A certificate does not require a statement of the stages in the intellectual processes which led to the final opinion so that if the matter referred to in par3 is an ambiguity it is not material. As to par4 it was patent that the grounds for the opinion included matters other than those found on examination so it could not be said that in the light of the documents read as a whole the phrase "as a result of this examination" created a vitiating ambiguity in the certificate. However although the learned primary judge held that the Commissioner's grounds for holding that the certificate did not comply with s86 were not correct he held that the certificate was invalid on other grounds and therefore dismissed the appeal. The first ground was expressed by the learned trial judge as follows:

"... the question of ambiguity remains in a different

form. The certificate stated that in the opinion of the

medical practitioner the worker had 'substantially

recovered from the effects of the injury', and the

question of ambiguity becomes whether the employer was

entitled to 'terminate' the weekly payment or simply to

'reduce' it. The Act does not specify events which

distinguish between termination and reduction. Section

86(1)(a), (d) and (e) relate to termination, whilst (b)

provides for reduction. Section 86(1)(c) refers to a

certificate stating that a worker has 'wholly recovered

or substantially recovered'. It may be that, dependent

upon the certificate, an employer is entitled to

terminate (wholly recovered) or reduce (substantially

recovered) weekly payments. In this case the certificate

states the respondent to be 'substantially recovered'

whilst the annexed or referred document posits a

'dramatic recovery'. It could not be said that the

certificate is unambiguous in relation to whether there

had been a 'total' or 'substantive' recovery, although

the grounds for the formation of the belief were

certainly unambiguous and enabled the worker to 'know

precisely the grounds on which his entitlement under the

act' were 'being withdrawn'.

However in the reported annexed to and comprising portion

of the certificate Dr McIntyre states, 'I can find no

evidence of any restriction on the part of this man to

use his back', and concludes "I would have no hesitation

in clearing him for work on the evidence of this video

surveillance'.

There exists ambiguity on the face of the documentation."

7. With respect I do not agree that the certificate and report were ambiguous. The only matter to which the doctor certified was that the respondent had "substantially recovered from the effects of the injury". The statements that the recovery was "dramatic" and that he would "have no hesitation in clearing him for work" do not conflict with that certification so as to give rise to ambiguity in the documents read as a whole. I also do not agree that the ambiguity arises out of the conclusion which I understood his Honour to have reached that the certificate created uncertainty as to "whether the employer was entitled to 'terminate' the weekly payment or simply to 'reduce' it". With respect I do not accept what seems to be implicit in his Honour's reasons that s86 requires that a certificate must operate as an explicit declaration of an employer's entitlement to terminate or reduce weekly payments. In order to comply with s86(1) a certificate is required to contain an opinion as to the matters specified in s86(1)(c) expressed in sufficiently unambiguous terms to enable it to be acted upon. Whether such a certificate has the effect of entitling an employer to terminate or reduce weekly payments is a matter of law depending upon all the facts.

8. The learned primary judge also held that the certificate did not comply with the requirements of s86 on the following grounds:

"The Commissioner found that the provisions of s86(1)(c)

permitted the medical practitioner to make the

certificate on the basis of his examination and his

consideration of the material portrayed in the

video-taped surveillance films. Since the conclusion of

the legal submissions in this appeal, Zeeman J published

his reasons for judgment in Goscombe v Cadbury Schweppes

Pty Ltd, unreported 23/1993. The questions referred to

in that decision had been discussed during the oral

submissions made during the hearing of this appeal.

Counsel were invited to make further submissions in the

light of that decision. They have now done so.

I agree with the reasons published in Goscombe v Cadbury

Schweppes Pty Ltd (supra). In particular, I adopt what

Zeeman J said at 12: 'Once the matter is referred, it is

incumbent upon the Commissioner to determine whether as a

matter of fact the claimed circumstances justifying the

proposed termination or reduction exist. Insofar as a

proposed termination or reduction is upon the basis of

s86(1)(c), that requires a consideration not only of

whether the certificate relied upon satisfies the

requirements of that provision, but also whether as a

matter of fact at the time that the medical practitioner

examined the worker the worker had wholly recovered or

substantially recovered from the effects of the relevant

injury ... It is the time at which the medical

practitioner examined the worker which is relevant. The

certificate can only speak of what the medical

practitioner found upon such examination. It is the

state of affairs existing at that time which founds the

employer's claim to be entitled to terminate or reduce a

weekly payment. Any claimed entitlement to terminate or

reduce based upon some other state of affairs is not

encompassed by "the matter".

And at 13:

'The question for the learned Commissioner was whether,

in the terms of s86(1)(c), the state of the worker at the

time she was examined ... was such that there had been

the degree of recovery referred to in s86(1)(c) or that

her incapacity was then no longer due, wholly or

substantially, to that injury. It was the condition of

the worker at the time of that examination which provided

the legal justification (if there was legal

justification) for a termination or reduction of the

weekly payment.'

In this case the medical practitioner did not form an

opinion based on an examination and did not express an

opinion of the condition of the worker at the time of

that examination. Rather he formed an opinion on the

basis of material supplied some time after the

examination. The medical practitioner had become a fact

finder in the sense that:

- he found that the video tape portrayed the appellant;

- that it had been taken at a particular date;

- that it accurately reflected the condition of the

appellant; and

- that it had not been subjected to editing.

His opinion was not based on the examination and such is

required by the Act."

9. With respect I do not accept that s86 requires that a certificate must be based solely on the results of the medical practitioner's examination of the worker. The only requirements for the validity of a certificate are that it is made by a medical practitioner who has examined the worker. There is no requirement that the certificate must be based upon any particular class of data. It may be that a requirement that there be a connection between the nature and time of the examination and the content of the certificate ought to be implied but there is no basis upon which the Court would be entitled to import a requirement that the certificate must be based solely on what the medical practitioner found on examination. Further it is obvious from the circumstances under which medicine is practised of which circumstances the Court can take judicial notice that there are positive reasons for not importing such a requirement. It is notorious that medical opinions may be based upon many factors extraneous to the examination of a patient such as medical and hospital records, pathology reports and x-ray examinations. There is no basis upon which the Court would be entitled to restrict the ambit of the materials to which the medical practitioner may have regard in giving his certificate. He must be entitled to take into account anything which in his professional judgment is relevant.

10. Insofar as the learned primary judge should be understood as holding that the fact that the medical practitioner became a fact finder constitutes a separate basis for holding that the certificate was invalid I would with respect disagree. It is inherent in all medical opinions that they include findings of fact ranging from mundane findings such as: "the patient is an obese fifty year old male" to findings such as "on the basis of my observations of the patient as he put on his shoes I find that he had a greater degree of flexion than he displayed on examination". The mere fact that findings of fact are made does not invalidate a certificate.

11. I would allow the appeal, order that the order dismissing the appeal from the Commissioner be set aside and that in lieu thereof there be an order that the appeal against the Commissioner's order be allowed and his determination set aside and that the reference to the Commissioner be remitted to the Commissioner to be determined in accordance with law.

CRAWFORD J The respondent was employed by the appellant as a textile mechanic. He claimed that on 13 August 1991 he fell in the course of his employment and as a consequence suffered grazing, bruising to his kidneys and a partial prolapse of the L5/S1 disc in his spine with accompanying soft tissue injury. He claimed compensation under the Workers Compensation Act 1988 and the appellant accepted the claim and paid compensation in accordance with the Act. Weekly compensation under s69 was paid by the appellant to the respondent from 13 August 1991 to 10 June 1992. Payments were terminated by the appellant following service on the respondent on 29 May 1992 of a notice and a medical practitioner's certificate under s86(3). The respondent wished to dispute the termination of the weekly payments and pursuant to s86(4) he referred the matter to the Workers Compensation Commissioner. In November 1992 the Commissioner held that the certificate did not comply with the requirements of s86, that the appellant had therefore not been entitled to terminate the weekly payments and the termination was invalid. The Commissioner ordered that payments of weekly compensation resume from the date of termination.

2. An appeal by the appellant to a judge was dismissed on the ground that the Commissioner had been right when he determined that the certificate did not conform with the requirements of s86, although not for the same reasons. The appellant has now appealed to this Court.

3. The provisions of s86 at the relevant time were:

"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).

(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 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, as prescribed, refer the matter to the

Commissioner for determination."

4. No issue was taken by the respondent with the form and contents of the appellant's notice of intention to terminate the weekly payments. It was dated 29 May 1992 and gave notice to the respondent that at the expiration of 10 clear days from the service of it upon him the appellant intended to cease the weekly payments of compensation. The issues which have arisen concern the medical practitioner's certificate and his report dated 4 May 1992. It was common ground before this Court that the report was annexed to the certificate. They were served on the respondent at the same time as the notice. The certificate was in these terms:

"Certificate given under section 86(1)(c)(2) of the

Workers Compensation Act, 1988

This is to declare that on the 19 February, 1992 I, Dr E

D McIntyre being a medical practitioner registered in

Tasmania, examined Dean Sherriff. As a result of this

examination, I certify that Dean Sherriff has

substantially recovered from the effects of the injury

sustained on 13 August, 1991.

The grounds for this opinion are:

The fact he was only able to manage a limited range of

flexion of his spine at my surgery. This is in complete

contrast to his back movements seen on video surveillance

arranged by your company. Other reasons given in my

report of 4/5/92.

Signed E McIntyre."

The grounds were handwritten. The preceding parts of the certificate were typed.

5. The medical practitioner's report was in the following terms:

"May 4, 1992

Tasmanian Government Insurance Office,

PO Box 130,

LAUNCESTON, 7250

Attention: Mrs A Curbishley

Dear Mrs Curbishley

re: Dean SHERRIFF

I viewed approximately 38 minutes of video surveillance

taken at your request of the alleged subject in an (sic)

around his home. This surveillance shows him to be able

to fully and apparently painlessly move his back in all

directions. He repeatedly bent fully to 90 degrees,

picked up children and some other objects of medium

weight. He was also able to bend sideways without any

restriction or apparent pain and he was able to twist

freely. In addition he was able to remain in the 90

degrees flexed position for a minute or so at a time.

Also he could maintain a half bent position for an

extended period of time.

I can find no evidence of any restriction on the part of

this man to use his back. The surveillance was taken on

the 10th and 11th April so it is obviously current.

It is ten weeks since my report was forwarded to you so

he has either made a dramatic recovery since I saw him or

he was grossly exaggerating his symptomatology when I saw

him.

I would have no hesitation in clearing him for work on

the evidence of this video surveillance.

Yours faithfully

E D McIntyre

FRCS, FRCS (Edin.) FRACS."

6. The Commissioner was of the opinion, on the basis of what was said in Heat Containment Industries v Kimberley (1990) 2 WAR 47, that if the certificate did not comply with s86(1)(c) and (2) the termination was invalid and he was not required to consider further whether the termination of weekly payments would otherwise have been justified. If the certificate did not comply with s86, the respondent could not rely on s86(1)(c) as justification for terminating the payments.

7. The learned Commissioner held that the certificate was ambiguous. With respect he did not specify with clarity what he thought the ambiguities were but I think, being fair to his language, that he meant that the ambiguities were as follows:

1 It was not clear from the certificate whether or not

the viewing of a video surveillance film subsequent to

his examination of the respondent was the ground for the

doctor's opinion that the respondent had substantially

recovered from the effects of the injury.

2 It was not clear from the certificate whether or not

the reference to an ability to manage a limited range of

flexion of the spine was a reference to what was found in

the course of the doctor's examination of the respondent

on 19 February 1992.

3 It was not clear from the certificate whether the

doctor's opinion had been held by him since the

examination on 19 February 1992 or whether the viewing of

the video surveillance film had caused the doctor to

change his opinion to that expressed in the certificate.

4 The expressed grounds for the opinion were inconsistent

with the statement in the certificate that the doctor, as

a result of the examination on 19 February 1992,

certified that the respondent had substantially recovered

from the effects of the injury.

8. The Commissioner said that he was of the view that the respondent was unable to ascertain from the documents whether his payments had been terminated as a result of the examination of him by the doctor, or as a result of the viewing by the doctor of the video surveillance film subsequent to the examination, or as a result of a combination of both. He accepted however that the report of 4 May 1992 "would tend to indicate that the main grounds for certification relate to the viewing of the video surveillance film" adding that "the report is therefore capable of adding to the ambiguity". With respect to the learned Commissioner it seems to me that the report clarified the grounds of the doctor's opinion to the extent that it removed any ambiguity which might otherwise have been open from a reading of the certificate alone.

9. The learned judge who heard the first appeal did not agree with the Commissioner. On the basis that the report of 4 May 1992 "formed part of the certificate", and I consider that it should be so treated, his Honour determined "there can be no ambiguity in relation to the grounds upon which Dr McIntyre based his opinion". His Honour considered that Dr McIntyre clearly stated that he had examined the respondent in February 1992, that he saw a video which depicted a person (whom he found to be the respondent) to be performing certain physical movements, that those movements were incompatible with the medical diagnosis he had made in February and that either there had been recovery or the doctor's original diagnosis should be altered.

10. I am left in no doubt that the certificate when read alone is somewhat ambiguous and does not sufficiently state the grounds for the doctor's opinion that the respondent had substantially recovered from the effects of his injury. But I also have no doubt that when the certificate is read in conjunction with the doctor's report, which by reference is incorporated in the certificate, all ambiguity is removed and the grounds are sufficiently stated. I respectfully consider that the learned Commissioner erroneously found material ambiguity. When read in conjunction with each other, the documents reveal that Dr McIntyre was of the opinion that the respondent had substantially recovered from the effects of his injury because of his movements and activities observed on the video film and which were described in the doctor's report of 4 May. It is clear from that report that having made those observations Dr McIntyre was of the opinion that there was no evidence of any restriction in the use of the respondent's back. What the doctor may have observed in the course of his examination of the respondent on 19 February was not part of his grounds for concluding that the respondent had substantially recovered. To the contrary, it may be inferred that what was found in February amounted to grounds for an opinion that the respondent had not substantially recovered by that date. As a result of seeing the video film the doctor was led to conclude that either there had been a dramatic recovery since February or the respondent was grossly exaggerating his symptomatology in February. Whichever of those propositions was correct is immaterial for neither formed the basis of the doctor's opinion that the respondent had substantially recovered.

11. Notwithstanding that the learned judge found no ambiguity of the kind found by the learned Commissioner, he nevertheless held that there was another form of ambiguity. His Honour spoke of it in this way:

"On that basis the grounds of appeal would have been made

out. However, the question of ambiguity remains in a

different form. The certificate stated that in the

opinion of the medical practitioner the worker had

"substantially recovered from the effects of the injury",

and the question of ambiguity becomes whether the

employer was entitled to "terminate" the weekly payment

or simply to "reduce" it. The Act does not specify

events which distinguish between termination and

reduction. Section 86(1)(a), (d) and (e) relate to

termination, whilst (b) provides for reduction. Section

86(1)(c) refers to a certificate stating that a worker

has "wholly recovered or substantially recovered". It

may be that, dependent upon the certificate, and employer

is entitled to terminate (wholly recovered) or reduce

(substantially recovered) weekly payments. In this case

the certificate states the respondent to be

"substantially recovered" whilst the annexed or referred

document posits a "dramatic recovery". It could not be

said that the certificate is unambiguous in relation to

whether there had been a "total" or "substantive"

recovery, although the grounds for the formation of the

belief were certainly unambiguous and enabled the worker

to "know precisely the grounds on which his entitlement

under the act" were "being withdrawn".

However in the report annexed to and comprising portion

of the certificate Dr McIntyre states, "I can find no

evidence of any restriction on the part of this man to

use his back", and concludes "I would have no hesitation

in clearing him for work on the evidence of this video

surveillance".

There exists ambiguity on the face of the documentation.

Given the distinctions made between varying incapacities

referred to by Zeeman J in Osborne v EST Hotel

Enterprises Pty Ltd, unreported 89/1992 the ambiguity is

not unimportant. See also Atkinson v Nipper Cleaning

Services Pty Ltd, unreported 84/1992. In this case the

effect of the ambiguity is such that no valid certificate

was issued. The Commissioner was correct in his

determination".

12. With respect the learned judge was clearly in error, first as to his finding of ambiguity in the certificate and its accompanying report and second as to his interpretation of s86(1). There is no ambiguity within statements that no evidence of any restriction in the use of the respondent's back could be found, that the respondent could be cleared for work and that he had substantially recovered from the effects of his injury. It is conceivable that notwithstanding that the video film made it appear that there were no restrictions in the use of his back and that the respondent was fit for work, he nevertheless had some minor symptoms remaining from his injury and therefore had not totally recovered. The doctor did not express that the respondent had both totally recovered and substantially recovered. On the face of Dr McIntyre's certificate and report the substantial recovery to which he referred justified termination under s86(1), subject of course to the respondent's right to refer the question to the Commissioner for his determination under subs(4).

13. The learned judge was wrong to say that s86(1)(a) and (d) related to termination and (b) to reduction. The provisions are not so confined in their terms. A return to work within par(a) might be good cause for terminating weekly payments but it might only justify reduction. If there still remained some incapacity so that the worker was only able to do work of a more limited kind than was the case before the injury with the consequence that he or she was not able to earn as much as before, only a reduction might be justified. As to par(d) there is no reason to think that a failure or refusal to undertake or participate in a rehabilitation programme recommended by the employer would justify termination and not reduction. It might only justify a reduction. It might not justify either of course, and if an employer terminated or reduced payments on that ground, the worker would be entitled to have the Commissioner determine the question under subs(4). It might be determined that the employer's recommendation of a rehabilitation programme was totally unreasonable. As to par(b) the circumstances there postulated might justify termination. The worker might be partially incapacitated but nevertheless be earning so much that he would have no entitlement to any amount by way of weekly compensation.

14. For these reasons I conclude that the learned judge was wrong to find ambiguity and consequent invalidity in the certificate.

15. The learned judge also held that the doctor's certificate did not comply with the Act because the opinion that the respondent had substantially recovered from the effects of his injury was based on material contained in the video surveillance film which he viewed some two to two and a half months after his examination of the respondent in February, whereas in the learned judge's view, s86(1) required that the opinion be based on what was found in the course of the "examination" and that it should concern the condition of the respondent at the time of it and not at a subsequent time. Section 86 imposes no such requirement but the learned judge came to his conclusion adopting what was said by Zeeman J in Goscombe v Cadbury Schweppes Pty Ltd 23/1993 at 12 and 13:

"Once the matter is referred, it is incumbent upon the

Commissioner to determine whether as a matter of fact the

claimed circumstances justifying the proposed termination

or reduction exist. Insofar as a proposed termination or

reduction is upon the basis of s86(1)(c), that requires a

consideration not only of whether the certificate relied

upon satisfies the requirements of that provision, but

also whether as a matter of fact at the time that the

medical practitioner examined the worker the worker had

wholly recovered or substantially recovered from the

effects of the relevant injury .... It is the time at

which the medical practitioner examined the worker which

is relevant. The certificate can only speak of what the

medical practitioner found upon such examination. It is

the state of affairs existing at that time which founds

the employer's claim to be entitled to terminate or

reduce a weekly payment. Any claimed entitlement to

terminate or reduce based upon some other state of

affairs is not encompassed by 'the matter'.

...

The question for the learned Commissioner was whether, in

the terms of s86(1)(c), the state of the worker at the

time she was examined ... was such that there had been

the degree of recovery referred to in s86(1)(c) or that

her incapacity was then no longer due, wholly or

substantially, to that injury. It was the condition of

the worker at the time of that examination which provided

the legal justification (if there was legal

justification) for a termination or reduction of the

weekly payment."

16. I think with respect that those passages contain an error which was immaterial to the resolution of that case. They should be read in the light of the facts in Goscombe. The certificate under s86(1)(c) was dated 15 June and served on 18 June but the opinions of the medical practitioner contained in the certificate, which included that the worker had wholly or substantially recovered from her work caused injury, were solely based on the medical practitioner's examination of the worker on 1 May 1992. It was in those circumstances that Zeeman J held that the question for the Commissioner was whether at the date of the examination there had been the degree of recovery referred to in s86(1)(c) and it would not have made any difference in that case if his Honour had instead specified the date of the certificate as the relevant date.

17. I concur with the conclusion reached in Goscombe and in Burgess v Umina Park Home for the Aged 21/1993 that when a case such as this comes before the Commissioner as a reference of "the matter" under s86(4) the function of the Commissioner is to determine whether there has been compliance with the statutory requirements of s86 for termination or reduction and, if so, whether the medical practitioner's opinion that there had been substantial recovery from the effects of the injury was a correct one. The second question would, of course, involve a consideration of the facts upon which an opinion about the matter might be based.

18. The legislature was prepared to trust in the general integrity of medical practitioners and that they would act responsibly in the issue of certificates under s86(1)(c) provided that they had examined the worker. In my view it should be inferred from that requirement that the examination must be made at a time subsequent to the suffering by the worker of the relevant injury. If an examination prior to that time was permitted the intention of the legislature would clearly be thwarted. But I do not consider that the court should read into par(c) a further requirement that the examination must have been performed at any particular time after the suffering of the injury or before the formation of the opinion and the issue of the certificate, or for any particular purpose. In the usual case, of course, if the opinion is expressed in a certificate at a time remote from the time of the medical practitioner's examination of the worker the weight of the opinion would tend to be slight and more likely to be discredited on a reference under s86(4) than in the case of an opinion based on the results of a recent examination. If the worker's rights were to be finally determined by the opinion of the medical practitioner then there might be good reason to interpret the requirement for a medical examination as including a requirement that the examination be for relevant purposes and at a time sufficiently close to the formation of the opinion and the issue of the certificate so to give more weight to the medical practitioner's opinion than might otherwise be due. But Parliament has provided a procedure for safeguarding the interests of the worker in the event of an erroneous opinion by providing in subs(4) for the worker's right to refer the matter to the Commissioner for determination. That is sufficient safeguard and in my view it would be contrary to a principle of statutory interpretation to read words into s86(1)(c) which could easily have been included if Parliament had wished. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". Thompson v Goold and Co (1910) AC 409 at 420. And see Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649, Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1 at 12. The statutory provision is sufficiently workable, and there is adequate protection for the worker, to justify the interpretation given to it.

19. The legislation does not require that the opinion of the medical practitioner be based only on his or her examination of the worker. Of course what amounts to an examination by a medical practitioner is open to question. I think it would include a direct physical examination of the worker, his responses to questions, the results of xrays and pathology and other such things. Arguably it might include, in conjunction with a direct physical examination, observations made by the medical practitioner of the worker on an occasion when the worker did not know he was being observed and even to observations made when watching a film of activities being performed by the worker. However I would hesitate about concluding that such observations alone would amount to an examination of the worker. Notwithstanding these considerations, as s86(1)(c) does not require the medical practitioner's opinion to be based solely or at all on what was learned in the course of the examination, I would not interpret the provision as requiring it. The requirement for an examination qualifies the medical practitioner as one who may provide the relevant certificate. The certificate need make no mention that there has been an examination, the only contents required being the relevant opinion and the grounds for it. Conceivably and quite properly and reasonably, the grounds for the opinion might include information not obtained from the medical practitioner's examination of the worker. I refer for example to prior or subsequent hospital and medical records made by others including x-ray and pathology results, the opinions of other medical practitioners and experts, the worker's history as derived from others and other sources of information. Indeed the opinion might be contrary to what was indicated when the worker was physically examined. All manner of conflicting materials might need to be considered and there is no sound reason why the eventual opinion of the medical practitioner should be allowed to stand only if it is supported by information gained in the course of the examination of the worker.

20. For these reasons I conclude that the appeal should be upheld. It should be ordered that the order of the learned judge dismissing the appeal from the Commissioner should be set aside and the appeal from the Commissioner's determination should be upheld. The reference from the respondent to the Commissioner should be remitted to the Commissioner to be determined according to law.

ZEEMAN J On 13 August 1991 the respondent suffered an injury in the course of his employment with the appellant. That injury resulted in the respondent becoming incapacitated for work and he made a claim for compensation pursuant to the provisions of the Workers Compensation Act 1988 ("the Act"). That claim was accepted by the appellant and it commenced to make weekly payments of compensation to the respondent on 30 August 1991. On 19 February 1992 the respondent was examined by Mr E D McIntyre, an orthopaedic surgeon retained by the appellant. So far as it appears from the evidence, it would seem that Mr McIntyre then formed the view that the respondent continued to be incapacitated for work by reason of his injury, or at least did not form the contrary view.

2. On 29 May 1992 the appellant purported to take the steps referred to in the Act, s86(3) by causing to be served upon the respondent a notice advising him "that at the expiration of ten clear days from the service upon you of this notice, Australian Weaving Mills (being the name under which the appellant carried on business) intends to cease weekly payments of compensation heretofore made to you." At the same time there were served upon the respondent a form of certificate and a copy of a medical report addressed to the Tasmanian Government Insurance Office.

3. The certificate was undated but was given some time between 4 and 25 May 1992. It was in typewritten form except for the statement of grounds and the signature which were in handwriting. The certificate was in the following terms:

"CERTIFICATE GIVEN UNDER SECTION 86(1)(C)(2) OF THE

WORKERS COMPENSATION ACT, 1988

This is to declare that on the 19th February, 1992 I, Dr

E D McIntyre being a medical practitioner registered in

Tasmania, examined Dean Sherriff.

As a result of this examination, I certify that Dean

Sherriff has substantially recovered from the effects of

the injury sustained on 13th August, 1991.

The grounds for this opinion are:

(Handwritten) The fact he was only able to manage a

limited range of flexion of his spine at my surgery this

is in complete contrast to his back manoeuvrability seen

on video surveillance arranged by your company. Other

reasons given in my report of 4/5/92.

Signed: E McIntyre"

"May 4, 1992

Tasmanian Government Insurance Office,

PO Box 130,

LAUNCESTON, 7250

Attention: Mrs A Curbishley

Dear Mrs Curbishley

re: Dean SHERRIFF

I viewed approximately 38 minutes of video surveillance

taken at your request of the alleged subject in an (sic)

around his home. This surveillance shows him to be able

to fully and apparently painlessly move his back in all

directions. He repeatedly bent fully to 90 degrees,

picked up children and some other objects of medium

weight. He was also able to bend sideways without any

restriction or apparent pain and he was able to twist

freely. In addition he was able to remain in the 90

degrees flexed position for a minute or so at a time.

Also he could maintain a half bent position for an

extended period of time.

I can find no evidence of any restriction on the part of

this man to use his back. The surveillance was taken on

the 10th and 11th April so it is obviously current.

It is ten weeks since my report was forwarded to you so

he has either made a dramatic recovery since I saw him or

he was grossly exaggerating his symptomatology when I saw

him.

I would have no hesitation in clearing him for work on

the evidence of this video surveillance.

Yours faithfully

E D McIntyre"

5. Having been served with these documents, the respondent proceeded in accordance with the Act, s86(4) by effecting a reference of the matter to the Workers Compensation Commissioner by application dated 1 June 1992. The reference was heard by the Commissioner on 25 November 1992 and on 23 December 1992 he made an order whereby he determined that the appellant was not entitled to terminate the weekly payment being made to the respondent and ordered that payment be resumed as and from the date of cessation.

6. From that order the appellant appealed to a judge. The appeal came before Slicer J who, on 5 July 1993, ordered that the appeal be dismissed and published written reasons (B25/1993). The appellant now appeals to this Court against the dismissal of its appeal by Slicer J.

7. The effect of the conclusions reached by the learned primary judge is as follows:

(a) that on the face of the certificate (of which the

medical certificate formed part) there was such ambiguity

that the certificate was not one which conformed to the

requirements of the Act, s86(1)(c) and (2); and

(b) that the opinion expressed by Mr McIntyre in his

certificate was not an opinion based upon his examination

of the respondent, that the Act, s86(1)(c) required that

the certificate relied solely on what was found on

examination and that accordingly the certificate was not

a certificate for the purposes of that provision.

8. The grounds of appeal assert that the learned primary judge erred in reaching those conclusions. It ought to be observed that the learned Commissioner did not direct his mind to the second of the conclusions reached by the learned primary judge. He based his decision solely upon what he perceived to be an ambiguity on the face of the certificate, although the ambiguity which he identified was different from that identified by the learned primary judge. His Honour held that the learned Commissioner erred in finding that there was on the face of the certificate an ambiguity of the nature identified by the Commissioner.

9. Both parties accept that upon a reference under the Act, s86(4), two quite separate matters are required to be determined by the Workers Compensation Commissioner, namely whether the steps specified in s86(3) have been taken and, if they have been taken, whether there ought to be termination or reduction of the weekly payment. A conclusion that the steps specified in s86(3) have not been taken requires that the reference be determined in favour of the worker and there is then no occasion to embark upon any other form of inquiry. If no issue is raised as to compliance with s86(3), or if raised it is determined in favour of the employer, the Commissioner is required to embark upon a hearing upon the merits. That that is the effect of s86(4) was determined in Burgess v Umina Park Home for the Aged A21/1993 and Goscombe v Cadbury Schweppes Pty Ltd A23/1993.

10. It is appropriate to deal at the outset with the learned primary judge's conclusion that a certificate given by a medical practitioner in reliance upon material other than that which he found upon the examination of the worker is not a certificate which satisfies the requirements of s86(1)(c). A consideration of that aspect of the matter requires that matters relevant to any perceived ambiguity be canvassed.

11. The learned primary judge concluded from a consideration of the certificate and the report that the conclusion expressed by Mr McIntyre was one which was not based upon what he found on his examination of the respondent, but was based upon what he saw depicted in a video film supplied to him after the examination had taken place and which film purported to depict the respondent engaged in activities some months after the examination. His Honour said that Mr McIntyre became a fact finder in the sense that he found that the video tape portrayed the respondent, had been taken on particular dates, accurately portrayed the condition of the respondent and had not been subjected to editing. The learned primary judge was of the view that that resulted in the certificate not complying with s86(1)(c).

12. In reaching that conclusion, the learned primary judge appears to have relied upon a number of observations which I had occasion to make in Goscombe v Cadbury Schweppes Pty Ltd (supra), and in particular what I said at 12:

"Once the matter is referred, it is incumbent upon the

Commissioner to determine whether as a matter of fact the

claimed circumstances justifying the proposed termination

or reduction exist. Insofar as a proposed termination or

reduction is upon the basis of s86(1)(c), that requires a

consideration not only of whether the certificate relied

upon satisfies the requirements of that provision, but

also whether as a matter of fact at the time that the

medical practitioner examined the worker the worker had

wholly recovered or substantially recovered from the

effects of the relevant injury ... It is the time at

which the medical practitioner examined the worker which

is relevant. The certificate can only speak of what the

medical practitioner found upon such examination. It is

the state of affairs existing at that time which founds

the employer's claim to be entitled to terminate or

reduce a weekly payment. Any claimed entitlement to

terminate or reduce based upon some other state of

affairs is not encompassed by 'the matter'."

and at 13:

"The question for the learned Commissioner was whether,

in the terms of s86(1)(c), the state of the worker at the

time she was examined ... was such that there had been

the degree of recovery referred to in s86(1)(c) or that

her incapacity was then no longer due, wholly or

substantially, to that injury. It was the condition of

the worker at the time of that examination which provided

the legal justification (if there was legal

justification) for a termination or reduction of the

weekly payment."

13. With respect to the learned primary judge, those observations ought to be understood in the context of the facts in Goscombe. The facts of that case were that the worker had been examined by a medical practitioner on 1 May 1992. That medical practitioner, only relying upon the observations made upon examination of the worker, certified that she had wholly or substantially recovered from the relevant injury. Subsequent to that examination, but before the date of the certificate, the worker entered hospital and underwent surgery for a condition unconnected with the injury which she had suffered at work. The question which arose was whether incapacity for work which arose by reason of the surgery was relevant to the determination required to be made by the Commissioner. The question of law required to be determined in Goscombe was whether the "matter" which the Commissioner was required to determine pursuant to the Act, s86(4) was whether the worker had wholly or substantially recovered from the effects of the injury in respect of which a weekly payment of compensation had been made to her as at the time of the hearing or as at the time to which the certificate related. Whether the latter time was the date of the examination (being the only occasion when the practitioner received any material relevant to the worker's condition), the date upon which the certificate was signed by the practitioner or the date upon which it was served was immaterial in the circumstances of that case. Prima facie the latter time would be the date of the giving of the certificate. I would not adhere to the suggestion I made in Goscombe that it is the date of the examination. However in Goscombe the certificate clearly related to the state of affairs existing as at the time of the examination and it was that state of affairs that constituted the "matter" which was referred to the Commissioner. There was no occasion in Goscombe to consider whether the medical practitioner was entitled to have regard to anything other than that which he found or observed upon his examination of the worker because he had not had regard to any such thing.

14. It cannot be correct that a medical practitioner who furnishes a certificate for the purposes of s86(1)(c) is confined to certifying in accordance with an opinion held exclusively upon the basis of what that practitioner found or observed upon examination of the worker. At the very least, the practitioner must be entitled to have regard to diagnostic aids such as x-rays. The respects in which the learned primary judge found that the medical practitioner had become a fact finder are just as relevant to x-rays as they are to video film. I reject the submission that the practitioner may only have regard to what he found upon examination of the worker. If that submission were to be accepted it would place quite impractical limitations upon the material to which a medical practitioner may have recourse before giving a certificate. There is nothing in the Act to suggest that the requirement that the medical practitioner who gives the certificate has examined the worker should be read as importing such limitations.

15. Initially counsel for the appellant submitted that the requirement that the medical practitioner giving the certificate has examined the worker is no more than a qualification limiting the class of medical practitioners competent to give a certificate in relation to a particular worker. He submitted that a medical practitioner who had examined a worker at some time during the worker's life would be qualified to give a certificate in relation to that worker. In the course of argument, the example of a medical practitioner who had examined a worker, but only when he had delivered him at birth, was put to counsel. Counsel thereupon acknowledged that such a medical practitioner might not qualify and submitted that some limitations ought to be read into s86(1)(c) by reason of the reference of "the worker". As I understood that submission, it was to the effect that the examination would need to have occurred when the worker answered to the description of being "the worker", ie a worker employed by the employer liable to make the weekly payment.

16. Substantially s86(1)(c) and (2) re-enact provisions formerly contained in the Workers' Compensation Act 1927. Those former provisions provided as follows:

"21 - (1) An employer may terminate or diminish a weekly

payment where the circumstances are such as to justify

termination or diminution, as the case may be, in the

following cases only:-

...

(c) subject to the provisions of this section, where a

medical practitioner, after examining the worker, has

certified as prescribed, that the incapacity of such

worker is no longer due, or is no longer wholly due, to

the accident in respect of which the weekly payment is

being made;

...

(2) Every such certificate as is mentioned in paragraph

(c) of subsection (1) hereof shall specify the grounds

upon which the opinion expressed therein is given, and

the employer desiring to act on such certificate shall

serve a copy thereof on the worker, together with a

notice of his intention at the expiration of ten clear

days from such service to cease, or diminish by a

specified amount, the weekly payment then being made."

17. The requirement of the former s21(1)(c), that a certificate of the type therein referred to could be given only "after examining the worker", indicated that there was intended to be some relationship between that examination and the findings upon examination and the matter certified to. That appears to be the effect of Hennessy v The Broken Hill Proprietary Company Limited [1926] HCA 32; (1926) 38 CLR 342 where the relevant statutory expression was "after examination". Dealing with a certificate issued some 17 months after the examination occurred, the High Court held that that examination was too remote and could not be relied upon as an examination under the Act for the purposes of the certificate (per Knox CJ, Gavan Duffy and Starke JJ at 348, per Isaacs J at 350 and per Higgins J at 353). In taking that view, the Court adopted the view expressed in the court below by Ferguson J when his Honour said (In Re Broken Hill Proprietary Company Limited and Hennessy (1925) 26 SR (NSW) 67 at 81-82:

"The second certificate might also have been rejected, I

think, on the ground, that the requirement that it should

be given 'after examination' was not complied with, in

the sense in which those words are used. It cannot have

been contemplated that the board should certify a man as

fit for employment to-day, on an examination made

seventeen months ago."

18. I do not consider that by employing the words "who has examined the worker" instead of the words "after examining the worker" Parliament has evinced any intention to alter the purpose for which a worker is to be examined. If the submission made by the appellant were to be accepted, Parliament has converted a requirement that there be a relevant examination to a requirement that the medical practitioner shall have examined the worker even though the occasion upon which the examination has taken place could not be said to be capable of being relevant to the slightest degree to the matter intended to be the subject of the certificate. As Parliament has provided that the medical practitioner who gives the certificate must be one who has examined the worker, it may be assumed that it so provided for a purpose. An obvious purpose may be perceived. That purpose is to ensure that any certificate setting forth a relevant opinion of a medical practitioner is not given by the practitioner unless he first has examined the worker at a time that it can be said that the certificate bears some reasonable relationship to the examination. The words "who has examined the worker" appearing in s86(1)(c) ought to be given a meaning essentially no different to that attributed to the words "after examining the worker" appearing in the former Act.

19. Counsel for the appellant referred the Court to some extrinsic material and invited the Court to consider it pursuant to the Acts Interpretation Act 1931, s8B. I have not found it necessary to have recourse to that material. However that material confirms the construction of s81(1)(c) which I favour. In particular, the clause notes accompanying the bill for the Act indicate that there was no intention to effect any radical alteration to the requirements for a valid certificate of the type under consideration. The following notes were provided in relation to the clause which became s86 of the Act:

"Specifies the circumstances under which the payment of

compensation to a worker may be reduced or terminated.

Generally in line with the existing Section 21 except

that

- payments may be terminated if a worker fails or refuses

to undertake rehabilitation treatment or programs

- notice of termination or reduction is required in all

instances

- a worker may refer the matter of termination or

reduction to the Commissioner. Under the existing

legislation a worker may refer such a matter to a judge -

but this must be done within 10 days of receiving notice

of termination/reduction. The time limit has been

removed."

20. I conclude that s86(1)(c) does not require that the matter ultimately certified to is that which has been ascertained by means of an examination and by no other means. Before a medical practitioner gives a certificate, he is entitled to have regard to all relevant material but must have conducted an examination which has a sufficient connection with the certificate. A medical practitioner upon examination of a worker who claims to be incapacitated may not find any clinical evidence that the claimed incapacity does or does not exist but may then be provided with other material, such as a video film said to portray activities of the worker at a time reasonably proximate to the examination, indicating that the claimed incapacity did not exist at the time of the examination or, if it did, that it has since ceased to exist. In such a case the examination remains relevant in a negative sense in that the absence of incapacity indicated by the worker's activities portrayed in the film is not contradicted by anything found on examination. In such circumstances the medical practitioner is entitled to give his certificate in the terms of s86(1)(c). It is no objection that a medical practitioner who has given a certificate in a sense has acted as a fact finder.

21. There is nothing in s86(1)(c) which prevents a medical practitioner from finding necessary facts. It must be borne in mind that the medical practitioner is not the final arbitrator as to whether there is continuing incapacity because once the worker has been served with a certificate that worker has the right to refer the matter for determination to the Workers Compensation Commissioner under s86(4). What is found upon a medical examination may be the sole basis of a certificate under s86(1)(c). That was the case in Goscombe. But there are no restrictions on the materials to which regard may be had by the maker of a certificate under s86(1)(c). That provision does no more than require that there has been a relevant medical examination. I conclude that the learned primary judge erred in concluding that a certificate does not conform to s86(1)(c) if the medical practitioner gives it by reference to material which goes beyond what he found on examination of the worker.

22. I turn now to the matters raised as to the supposed ambiguity of the certificate. Counsel for the respondent sought to resist the appeal upon the basis that the certificate was ambiguous, both upon the basis found by the learned Commissioner and upon the basis found by the learned primary judge. I should observe that the form of the certificate, incorporating by reference the medical report, leaves much to be desired. It appears that it was left to the medical practitioner to complete the certificate insofar as the requirements of s86(2) were concerned. I suspect that questions of ambiguity would never have arisen had the appellant taken the simple step of obtaining competent legal advice on the form of the certificate. The appellant might have been better served had it taken such advice, presumably at minimal cost compared with the costs entailed by the successive appeals.

23. Despite its shortcomings, the form of certificate read together with the medical report, sufficiently conveys the grounds of the opinion expressed by Mr McIntyre. They may be summarised as follows:

(a) He examined the respondent on 19 February 1992.

(b) On the occasion of that examination, he only managed

a limited range of flexion of his spine.

(c) Subsequently Mr McIntyre watched video film of the

respondent engaged in physical activities on 10 and 11

April 1992.

(d) The carrying out of those physical activities

indicated that there then was no limitation on the

respondent's range of flexion of the spine.

(e) Either the respondent had suffered a dramatic

recovery from the effects of his injury between 19

February 1992 and 10 April 1992 or he had been grossly

exaggerating his symptomatology when examined on 19

February 1992.

(f) In either event, as at 10 and 11 April 1992 the

respondent had substantially recovered from the effects

of his injury.

24. The examination was a relevant examination even though I infer that upon its completion Mr McIntyre had not formed an opinion that the respondent had recovered from the effects of his injury and would not then have been able or prepared to give a certificate under s86(1)(c). The condition said to give rise to incapacity at the time of the examination was a limitation on the range of flexion of the spine. What Mr McIntyre saw on the video film satisfied him that the respondent no longer suffered from any such condition, even if he had suffered from it at the time of his examination. The examination remained an examination relevant to the certificate because it established what was the sole condition claimed to give rise to incapacity and excluded any other cause. What Mr McIntyre saw on the video film established to his satisfaction that the sole claimed condition giving rise to incapacity no longer was present. Where an examination establishes that if the worker suffers from the claimed incapacity at all it is by reason of the existence of a particular condition and at a later but reasonably proximate time there is made available to the medical practitioner evidence which satisfies him that the worker no longer is suffering from that condition, then a s86(1)(c) certificate may be given without further examination.

25. The basis upon which the learned Commissioner found the certificate to have been ambiguous appears from the following extract from the reasons for his decision:

"That of course is not an end to the matter in this

particular case. In this particular case the purported

certification by the medical practitioner is prefaced in

paragraph 2 in the certificate by the words 'as a result

of this examination'. Paragraph 3 is prefaced by the

words 'grounds for this opinion are'. Paragraph 3

relates to paragraph 2 and should be read together with

it. The subsequent viewing of a video surveillance film

appears to be the grounds which constitute the major

reason why the medical practitioner has certified

substantial recovery. The ambiguity present in such a

certification must be apparent. In my view the

ambiguities may be summarised as follows:-

1 If it was meant to mean that the grounds for the

opinion are the subsequent viewing of the video

surveillance film then it does not say that.

2 If it is meant to mean that the reference to the

limited range of flexion in the spine at the surgery

relates to the examination on the 19th February 1992 then

it does not say that.

3 Has the doctor changed his opinion as a result of

viewing the video surveillance film, or did he hold the

same opinion all the way through?

4 The grounds for the opinion continued in paragraph 3 of

the certificate are inconsistent with the opinion

expressed in paragraph 2 of the certificate."

26. I do not agree that any of the supposed ambiguities referred to by the learned Commissioner were present. Whilst the certificate did not expressly say that that which was seen on the subsequent viewing of the video film was a ground for the opinion, a fair reading of the documents makes it clear that what was seen was being expressed as a ground. The only inference which can be drawn from the certificate is that the limited range of flexion was something which appeared on the occasion of Mr McIntyre's examination and not on any other occasion. Whether Mr McIntyre changed his opinion by reason of viewing the video film is not a matter of any relevance. The fourth supposed ambiguity is said to derive from Mr McIntyre's statement that his certificate was "as a result of this examination". Plainly it was not correct to say that the examination was the exclusive basis upon which the certificate was given. That much is entirely clear from the documents. I agree with the learned primary judge that the learned Commissioner erred in concluding that the certificate failed to satisfy the requirements of s86(2) upon the basis of the supposed ambiguities identified by him.

27. The basis upon which the learned primary judge found the certificate to have been ambiguous was stated by his Honour in the following terms:

The certificate stated that in the

opinion of the medical practitioner the worker had

"substantially recovered from the effects of the injury",

and the question of ambiguity becomes whether the

employer was entitled to "terminate" the weekly payment

or simply to "reduce" it. The Act does not specify

events which distinguish between termination and

reduction. Section 86(1)(a), (d) and (e) relate to

termination, whilst (b) provides for reduction. Section

86(1)(c) refers to a certificate stating that a worker

has "wholly recovered or substantially recovered". It

may be that, dependent upon the certificate, and employer

is entitled to terminate (wholly recovered) or reduce

(substantially recovered) weekly payments. In this case

the certificate states the respondent to be

"substantially recovered" whilst the annexed or referred

document posits a "dramatic recovery". It could not be

said that the certificate is unambiguous in relation to

whether there had been a "total" or "substantive"

recovery, although the grounds for the formation of the

belief were certainly unambiguous and enabled the worker

to "know precisely the grounds on which his entitlement

under the act" were "being withdrawn".

However in the report annexed to and comprising portion

of the certificate Dr McIntyre states, "I can find no

evidence of any restriction on the part of this man to

use his back", and concludes "I would have no hesitation

in clearing him for work on the evidence of this video

surveillance".

There exists ambiguity on the face of the documentation.

Given the distinctions made between varying incapacities

referred to by Zeeman J in Osborne v EST Hotel

Enterprises Pty Ltd, unreported 89/1992 the ambiguity is

not unimportant. See also Atkinson v Nipper Cleaning

Services Pty Ltd, unreported 84/1992. In this case the

effect of the ambiguity is such that no valid certificate

was issued.".

28. With respect to the learned primary judge, I would not agree with his construction of s86(1) as appears from this part of his reasons. The circumstances referred to in s86(1)(a) may make it appropriate that there be a reduction rather than a termination of a weekly payment. An example of the sort of case where a return to work authorised no more than a reduction of the weekly payment is to be found in Atkinson v Nipper Cleaning Services Pty Ltd (supra). Whilst normally s86(1)(b) might be expected to operate so as to entitle an employer to reduce a weekly payment, in some circumstances the actual weekly earnings being received by the worker may be in such amount as to make it appropriate that the weekly payment be terminated. Section 86(1)(c) ought not to be construed as authorising a termination where the worker has wholly recovered and reduction where he has substantially recovered. Whilst normally s86(1)(d) might be thought to give rise to a right to terminate, it does not appear to exclude the right of an employer to seek to reduce a weekly payment upon the basis that the worker has failed or refused to do what is referred to in that paragraph.

29. The expression "the worker has wholly recovered or substantially recovered" appearing in s86(1)(c) ought not to be read as being a requirement that the medical certificate select one or other degree of recovery as though it were a pleading which ultimately limits the ambit of the matter to be determined by the Commissioner on a reference under s86(4). I see no objection to a medical practitioner certifying that a worker has wholly or substantially recovered from the effects of a relevant injury without specifying one or the other. Either situation is capable of justifying a termination. Mr McIntyre certified to the respondent having substantially recovered and the matters stated by him by way of reasons justified that conclusion, although they might also have justified a conclusion that there had been total recovery. Substantial recovery from the effects of an injury may have the effect of there no longer being any incapacity for work, which is the ultimate test as to whether there is any entitlement to a weekly payment (the Act, s69). It all depends upon the facts of the case. There was no ambiguity in the certificate.

30. For the reasons which I have expressed I conclude that the appeal ought to be upheld. I propose that the following further orders be made:

1 That the order of the learned primary judge whereby he

dismissed the appeal to him be set aside.

2 That in lieu of the order made by the learned primary

judge the appeal from the Workers Compensation

Commissioner be upheld.

3 That the determination of the Workers Compensation

Commissioner that the appellant was not entitled to

terminate the weekly payment being made to the respondent

and the order of the Commissioner that weekly payments

resume be set aside.

4 That the reference made by the respondent to the

Workers Compensation Commissioner be remitted to the

Commissioner to be determined by him according to law.