Application for a summary order - Worker in receipt of income maintenance for many years in respect of stress/anxiety - Worker receives a section 36 notice asserting cessation of incapacity in reliance upon medical certificate which in turn refers to medical report - Medical report seems to cast doubt as to whether work caused the stress and anxiety - Worker challenges the bona fides of the certificate alleging that the compensating authority is attempting to revisit the issue of compensability through the back door - Principles governing applications for summary orders discussed - Doctor's medical report is not necessarily inconsistent with an acceptance that the claim was validly accepted - Material placed before the Tribunal does not establish that there is no serious issue to be tried - Not an appropriate case for the making of a summary order - Application dismissed - Ss.30A, 36, 38 Workers Rehabilitation and Compensation Act 1986; Rule 10 Workers Compensation Tribunal Rules 1996.

Church of Scientology Inc. v. Woodward [1982] HCA 78; (1982) 154 C.L.R. 25

Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62

Fancourt v. Mercantile Credit Ltd [1983] HCA 25; (1983) 154 C.L.R. 87

General Steel Industries Inc v. Commission of the Railways (NSW) [1964] HCA 69; (1964) 112 C.L.R. 125

South Australian Health Commission v. Brown A.2/1993

Webster v. Lamparde [1993] HCA 57; (1993) 177 C.L.R. 598

This is an application pursuant to Rule 10(1)(g) of the Workers Compensation Tribunal Rules 1996, made by Helen Garton (`the worker') which seeks a summary order in relation to the Notice of Dispute filed on her behalf, which challenges a determination made by the State of South Australia (`the employer') to discontinue weekly payments of compensation that were being paid to her, in respect of a previously accepted compensable disability.

In 1997, the employer conducted a review pursuant to Section 38 of the Workers Rehabilitation and Compensation Act 1986 (`the Act') and in the course of conducting that review, it arranged for the worker to be examined by Professor Goldney, a Psychiatrist.

Professor Goldney prepared a detailed medical report dated 10 June 1997, which he provided to the employer. He also completed a certificate, the relevant text of which is as follows:-

I was informed that she claimed to had suffered a disability namely "extreme distress" at work on 16/8/91.

*(c) the incapacity is no longer attributable to the disability.

Her history of emotional disturbance ante-dates her employment and her perception of having had problems with employment from day one is not consistent with there being significant ongoing subsequent stresses that would be of importance. See report (10/6/97) for further details.

Following receipt of this certificate the employer completed its review pursuant to Section 38 and thereafter resolved to make the determination, that is the subject of this dispute. By letter dated the 22 July 1997, it informed the worker that her weekly payments were to be discontinued on the basis that:-

* `Medical opinion of Professor Goldney (psychiatrist) dated 10 June, 1997 who considers that your psychiatric condition is the result of the natural history of your longstanding personality difficulties and that it is most unlikely that work related issues have had much impact upon you and that your employment has not been a substantial cause of your disability;

* A further medical report from Professor Goldney and medical certificate dated 16 July, 1997, certifying that your incapacity is no longer attributable to the compensable disability suffered by you on 16 August, 1991.'

The gravamen of the worker's complaint, upon which this application is based, is that it is patently clear that Professor Goldney does not accept that the worker sustained a compensable disability. It was said that it follows from this, that the employer could not, in reliance upon Professor Goldney's opinion, have been satisfied, as it is required to be, that the worker ceased to be incapacitated by the compensable disability, such that it could not rely upon Section 36(1)(b). Next it was said, that for the same reasons, the employer could not have been satisfied that there had been a change in the level of incapacity resulting from the compensable disability, as contemplated by Section 38.

Independently of these arguments, the worker contends that in the circumstances of this particular case, the employer is somehow estopped from revisiting the issues of compensability and incapacity, and that in any event, contrary to what is asserted in the notice, she has been and remains totally incapacitated for work, by reason of the compensable disability. Depending upon the outcome of this application, it might be necessary for me to deal with these issues, at a later time.

There is clear authority that supports the proposition that it is not permissible for a compensating authority, in purported reliance upon Section 36(1)(b), to in fact be asserting that there never was a compensable disability in the first place. See for example South Australian Health Commission v. Brown (unreported) A.2/1993 and WorkCover Corporation v. Atkison (unreported) A.132/1995.

There is also clear authority that supports the proposition that a compensating authority, in resolving to invoke Section 36(1)(b), has to act in good faith. This was dealt with at some length by the Workers Compensation Appeal Tribunal in Marunczak v. WorkCover (unreported) A.18/1991, presiding member Judge Cawthorne DP. I respectfully adopt what was said by the Tribunal at p.12 of its reasons, namely:-

`We acknowledge in cases where the Corporation wishes to discontinue making weekly payments on the basis of cessation of incapacity for work Section 36 provides that before doing so the Corporation must be satisfied, on the basis of the certificate of a recognised medical expert that the worker has ceased to be incapacitated for work. As we see it, that state of satisfaction is a fundamental precondition of the Section 36 procedure. Plus it may be that in some circumstances it is open to the worker to challenge and attempt by the Corporation to discontinue weekly payments being made to him on the basis that the essential prerequisite of the Corporation satisfaction as to the cessation of incapacity for work is wanting. Without purporting to be exhaustive, it seems to us that this argument maybe available where there is no evidence of the Corporation has concluded that the worker has ceased to be incapacitated for work or if its conclusion is to demonstratively non bona fide such as were it is not based on any expert opinion at all. However, even if it is opened to a worker in limited circumstances to attack the foundation of the Section 36 notice as a threshold matter in our opinion if there is a medical certificate which provides some foundation for the Corporation's conclusion then in the absence of other evidence suggesting non bona fide's on the part of the Corporation its conclusion is a sufficient foundation for the Section 36 procedure. ...'

It follows from this, that the submissions that were put to me on behalf of the worker, are not without merit. Moreover, I think that the observations made in Brown, Atkison and Marunczak (supra) are equally applicable to a review conducted pursuant to Section 38 of the Act and a consequential notice issued pursuant to Section 36(3)(a)(c).

But it is however important to note, that this is an application in the nature of summary relief, the effect of which will be, if granted, that the party against whom the order is made, will be deprived of its chance to present evidence and argue its case in court.

As I observed in Moore-McQuillan v. WorkCover (unreported) J.D.13/1997 at p.3, in deciding whether or not to grant a party summary relief, the Tribunal is required to adopt those principles that apply in civil jurisdictions generally.

It might emerge in subsequent proceedings that there was a lack of bona by the employer. The evidence might establish that the employer was not in fact satisfied on the basis of the certificate provided by Professor Goldney, that the worker had ceased to be incapacitated for work by the compensable disability.

But they are not the only conclusions that could be drawn from the material that has been placed before. I agree with the worker that the certificate of Professor Goldney has to be read with his report of 10 June 1997. I have closely examined that report, and in my view, some of the passages contained within it, are consistent with an opinion being expressed that the worker's employment may have at some time featured in a psychiatric condition. It follows from this, that a possible inference to be drawn from the report, particularly bearing in mind the unequivocal statement contained within the certificate that the worker `has ceased to be incapacitated by the compensable disability' is that that is in fact what Professor Goldney meant, such that the employer was entitled to be satisfied on the basis of that opinion, that the necessary prerequisite for the invocation of Section 36(1)(b) had been met.

For example, Professor Goldney said in his report:-

`It is just possible that there could have been a contribution from her employment within the Public Service, but the description of her perception of work from the very first day she started, along with her description of her pre-public service employment, is such that it is most unlikely that work related issues have had much impact upon her.'

`Finally, it is perhaps pertinent to note that on the basis of the information I obtained from Ms. Garton, and on the basis of the information provided, I am firmly of the view that it is most unlikely her employment was a substantial cause of her disability. ...'

It must be noted, that the worker's disability was accepted at a time when Section 30A did not apply. Thus, the fact that the worker's employment was not a substantially contributing factor, was of no particular significance. It certainly does not amount to a statement that the original disability should not have been accepted as compensable.

In Webster v. Lamparde [1993] HCA 57; (1993) 177 C.L.R. 598, Mason C.J. and Deane and Dawson J.J. at p.602, 603, stated that the principles which govern applications for summary judgment are as follows:

`The power to order summary judgment must be exercised with "exceptional caution": General Steel Industries Inc v. Commission of the Railways (NSW) [1964] HCA 69; (1964) 112 C.L.R. 125 at p.129 and "should never be exercised unless it is clear that there is no real question to be tried": Fancourt v. Mercantile Credit Ltd [1983] HCA 25; (1983) 154 C.L.R. 87 at p.99. As Dixon J. commented in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62 at p.91;

"A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine the course of action and needs to go out of it for the purpose of seeing whether the proceedings amount to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether on fact or law and that the rights of parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and a abuse of process".

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that `great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff has not been improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v. Commissioner of the Railways (NSW) (1964) 112 C.L.R. at p.130, see also, Church of Scientology Inc. v. Woodward [1982] HCA 78; (1982) 154 C.L.R. 25 at p.31.'

I do not regard this as being an appropriate case to grant summary relief. The application for directions is therefore refused. I will now adjourn the matter into chambers so that appropriate orders can be made for a full hearing and determination of the issues in dispute between the parties.