Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff Judgment [1994] TASSC 25;

Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff Judgment [1994] TASSC 25; - TASSC 1994 case summary — Zoe

[19]

"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."

[39]

"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".

[47]

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.

[48]

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.

[65]

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.

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Guthrie Pty Ltd Trading As Australian Weaving Mills v Dean Selwyn Sherriff Judgment [1994] TASSC 25; (1994) 3 Tas R 399 (17 March 1994)

Parties

Legislation Cited (5)

Cases Cited (5)