//
[2007] SAWCT 65
General information, not legal advice.
Workers Compensation Tribunal (SA)
2007-12-10
President Judge P
Original judgment source is linked above.
Introduction
1 On 3 March 2006 I made a judicial determination to the effect that Mrs Karen Holliday had an illness or disorder of the mind resulting from an aggravation of a pre-existing bipolar disorder during the course of her employment by Flinders University of South Australia ("the employer") on and from 14 November 2003. I found that the disability was compensable under s 30A of the Workers Rehabilitation and Compensation Act 1986 ("the Act").[1] As a consequence, the employer made payments of income maintenance to Mrs Holliday backdated to the commencement of her incapacity. Such payments are continuing at the present time.
2 By notice dated 6 June 2007 served on Mrs Holliday, Flinders University, in its capacity as an exempt employer, determined under s 36(1)(b) of the Act to discontinue the weekly payments being made to Mrs Holliday "as you have ceased to be incapacitated for work as a result of a compensable disability". The reasons for discontinuance were based upon the opinion of psychiatrist Dr Jules Begg. Mrs Holliday filed a notice of dispute in relation to the determination.[2] In accordance with the usual procedures under the Act, the dispute came before Conciliation Officer Willson on 7 August 2007. On that day he made an order under of the Act suspending the operation of the discontinuance decision "until further order", and issued directions with respect to the conciliation process.
3 The s 36 dispute was last before the conciliation officer on 13 November 2007. By then it had been joined with another dispute lodged by Mrs Holliday over the rejection by the employer on 17 October 2007 of her claim that in August 2007 she had suffered a work related "secondary adjustment disorder" as a result of the rehabilitation process which followed the commencement of her incapacity.[3] The parties joined in asking the conciliation officer to request that both disputes be referred for judicial determination. The Tribunal file records that at the same time the employer requested the conciliation officer to "revisit" the s 36(4)(b) order given the "state of medical evidence". The conciliation officer recorded that the issue was "finely balanced". However he declined to revisit the s 36(4)(b) suspension order. It appears that a further suspension order was then made.
4 The employer now applies to the Tribunal for an order revoking the s 36(4)(b) order made by the conciliation officer on 13 November 2007 so that weekly payments of income maintenance can be discontinued pending a contest on the merits as to the grounds for discontinuance.
5 The employer's application for directions was listed for hearing before me on 6 December 2007. On 3 December 2007 an application for directions was filed on behalf of Mrs Holliday seeking an order that the s 36(1)(b) notice be set aside on the ground that Dr Begg had not certified that Mrs Holliday had ceased to be incapacitated for work as a result of a compensable disability. That application was also listed for hearing on 6 December 2007.
Application to set aside the s 36(1)(b) notice
6 The assertion by the employer as to the cessation of incapacity contained in the s 36 notice was based upon the opinion of Dr Begg in his medical report of 22 May 2007. The stated reasons for the discontinuance included that:-
•
Dr Begg considered that Mrs Holliday had "returned to (her) pre-injury state in terms of the bipolar disorder";
•
"As it has been nearly three years since the incident at work", Dr Begg "could not see how it would still be influencing" Mrs Holliday's mental state;
•
Dr Begg stated that Mrs Holliday was not suffering from an aggravation, and had an underlying bipolar disorder which was not due to the compensable aspect of the established claim.[4]
7 In his submissions in support of the application, Mr Kernot, counsel for Mrs Holliday, whilst accepting that the medical report of Dr Begg was "a certificate" within the meaning of s 36, contended that the report provided no basis for the assertion that the worker had ceased to be incapacitated for work as a result of the compensable disability. Reference was made to extracts from Dr Begg's report to the effect that it was "reasonable that a graduated return to work be undertaken", that "she will be able to return to work at Flinders University, but not in the department with her previous supervisor", and that it was appropriate to certify the worker as fit to return to work for nine hours a week initially.
8 However, when the report of Dr Begg is read as a whole, there is clearly a basis upon which the employer could be satisfied that there was material which supported an assertion that Mrs Holliday had ceased to be incapacitated for work as a result of the established compensable disability. Among other things, Dr Begg expressed the view that the compensable incident was "no longer significantly operative in terms of her recovery", and could not now "be invoked as a cause for her depression". Dr Begg could not see how the incident could "still be influencing her mental state given the prolonged period of time she has been away from the incident". He considered that Mrs Holliday had "returned to her pre-injury state in terms of the bipolar disorder". Given the prolonged period of time that she had been out of the workplace due to a suitable return to work position not being made available, he concluded it was "reasonable that a graduated return to work be undertaken". He expressly stated that Mrs Holliday was not suffering from "an aggravation" and suggested that the underlying bipolar disorder and "personality factors" not related to the compensable claim were inhibiting her recovery.
9 In my view the medical report of Dr Begg provides a sufficient basis upon which the employer could be satisfied, for the purpose of issuing a s 36 notice, that Mrs Holliday was no longer incapacitated for work by reason of a compensable disability. The fact that one might contend, as did Mr Kernot, that an alternative interpretation of the report is that the inability to return to full-time work is causally connected to the compensable disability is not to the point. It cannot be said that there is no evidence that the employer has concluded that Mrs Holliday has ceased to be incapacitated for work, or that its conclusion is not bona fide in the sense that it is not based on any expert opinion at all.[5]
10 The application by Mrs Holliday seeks summary relief. On appeal from a decision which had set aside a s 36 notice on the basis that there was an absence of material enabling the compensating authority to be satisfied of the matters asserted in the certificate, the Full Tribunal in TransAdelaide v Alympic said:-
"It is a well-established principle that summary relief should only be granted when there is no real question of fact or law to be determined. It is not appropriate where the evidence is contested and it is conceivable that contra evidence might be accepted, or where the conclusions to be drawn from the evidence are open to reasonable argument: (citations omitted)... Parties ought not readily be denied the opportunity to present evidence and argue their case on the merits."[6]
11 For these reasons I do not consider that Mrs Holliday has established a basis upon which summary relief should be granted by making an order in the terms sought in her application for directions. I dismiss the application.
Application for revocation of order suspending the operation of the s 36 notice
12 The application for directions by the employer did not specify any provision of the Act or the Workers Compensation Tribunal Rules 2005 upon which it relied in support of the order sought. At the outset of the argument, counsel for the employer, Mr Austin, took me to the terms of s 36(4)(b) of the Act, appearing to suggest that it was open to me to revisit the issue afresh. I do not consider that it is appropriate to do so in this case.
13 The parties agreed that the material relied upon by the employer in support of its application before me was also before the conciliation officer on 13 November 2007 when he rejected the employer's request that he vary the suspension order previously made. No additional material was relied on when the matter was argued before me. In such circumstances I do not consider it appropriate to approach the matter by simply reconsidering the issue without having regard to the fact that the conciliation officer has already ruled against the employer on the same material.
14 When this view was raised during the course of argument, counsel for the employer appeared to accept the proposition that it was appropriate for me to consider the application in the context of the Tribunal's powers to amend or set aside an order under s 88H(1)(c) of the Act if required in "the interests of justice". The employer thus argued that the opinions of both Dr Begg and Dr Shane Gill, a psychiatrist who provided a report dated 12 August 2007 to the solicitors for Mrs Holliday, were so overwhelmingly in favour of the proposition that Mrs Holliday is no longer incapacitated for work as a result of the compensable disability that it was in the interests of justice that the order of the conciliation officer be set aside.
15 In addition to the views of Dr Begg already mentioned, counsel for the employer relied upon aspects of the report of Dr Gill in support of his argument. In particular, reliance was placed upon Dr Gill's opinion that the basis of the ongoing adjustment disorder was the extreme frustration and distress experienced by Mrs Holliday due to the inability of the employer to provide a return to work program. Whilst it was noted that Dr Gill considered the adjustment disorder to be a consequence of the work injury, resulting as it did from a failed rehabilitation process and an adversarial relationship with the employer, it was argued that in law the adjustment disorder was clearly not compensable. Dr Gill, it was submitted, acknowledged that the original work incident was no longer the stressor, and accepted that the current unresolved stressor giving rise to the adjustment disorder was due to events since the original incident.
16 Thus the employer submitted that this was an extreme case or an exceptional circumstance where the interests of justice require that I set aside the conciliation officer's order to suspend the effect of the s 36 notice.
17 With respect to the exercise of the power to amend or set aside an order under s 88H(1)(c) of the Act, I note that:-
•
The power is expressed widely and without limitation and may be exercised when the interests of justice require: Beaty v WorkCover/NRMA Workers Compensation (SA) Ltd (ALH Group Ltd T/as Hendon Hotel).[7]
•
The notion of the "interests of justice" involves flexibility and a consideration of the dictates of the individual case and of the participants in each case: Edgecombe v WorkCover/Allianz Australia (Queen Elizabeth Hospital Research Foundation).[8]
•
The power is discretionary and given the desirability of finality and of an end to litigation, it should be exercised sparingly, cautiously and only with good cause: Goodes v Select Staff Pty Ltd.[9]
18 Having regard to these principles, I consider this is not an appropriate case for me to intervene under s 88H(1)(c) or otherwise.
19 As observed above, the suspension order in question was made after argument was put by the parties to the conciliation officer. The relevant material now before me was considered by him. He came to the conclusion that a further suspension order should be made after consideration of that material. There have been no developments since that time which have been brought to my attention which suggest that such a conclusion was not open to him. These factors alone provide sufficient grounds for me to conclude that the interests of justice do not require that I revoke the suspension order.
20 Further, I do not accept the submission of the employer that the medical opinion overwhelmingly points to a lack of any causative link between the compensable injury and the current incapacity.
21 Such an argument is open to the employer on one view of the medical opinions. However, it is not the only argument which might be put. Whilst Dr Gill considers that the "ongoing adjustment disorder" arises from the failure of Mrs Holliday's employer to present a return to work program, and that the "original incident" is no longer the stressor, he nevertheless links the ongoing and unresolved stressor with the aggravating incident giving rise to the initial compensable injury. Dr Gill specifically states that the current adjustment disorder "is directly consequent upon her work injury".
22 It is not appropriate in an application of this nature to make any factual findings. It is to be remembered that issues of causation involve findings of fact and degree, and a close consideration of the circumstances peculiar to each case. It may be arguable that the connection between the circumstances of the alleged continuing incapacity and the established compensable disability is now too tenuous. However, the events which have occurred since the compensable disability in relation to rehabilitation and return to work (and the alleged lack of a return to work plan) may well be relevant to the issue of whether there is a continuing connection. This is particularly so where a claim against an exempt employer is involved. Conduct undertaken by such an employer in its capacity as the compensating authority which results in disability might be more readily seen as establishing a link so as to make the continuing alleged incapacity compensable: Vandervoes v WorkCover Corporation/VACC Insurance Worksafe (Seanco Pty Ltd).[10]
23 In any event, even if I was able to revisit the matter afresh, outside the constraints imposed by the application of s 88H(1)(a) of the Act, I would not consider it appropriate to do other than make an order continuing the suspension of the operation of the s 36 determination pending the substantive hearing. A number of authorities have made reference to the principles which govern the consideration of whether a suspension order should be made under s 36(4)(b) of the Act. Given that the relevant provision focuses on allowing for a reasonable opportunity for resolution of the dispute without prejudice to a worker's financial position in the meanwhile, it has been accepted that in the usual case the proper exercise of the discretion would require suspension of the effect of the s 36 notice unless there are compelling reasons why this is not appropriate: Hill v Monroe Australia Pty Ltd.[11] The matters raised by the employer in relation to the weakness of the causative link between the proven compensable disability and the current incapacity, and the fact that Mrs Holliday is now pursuing a separate claim for a compensable disability arising out of the alleged failures of the rehabilitation process, are relevant matters for consideration in this context, but insufficiently compelling.
24 A further matter that I take into account is that there is nothing in the conduct of Mrs Holliday since the service of the s 36 notice which has derogated from or undermined the opportunity of resolving the dispute over the s 36 notice as soon as possible. This is a factor in favour of allowing the suspension order to continue: Chirnside v State of South Australia (Primary Industries and Resources SA).[12] I reject the submission of counsel for the employer to the effect that Mrs Holliday, by now pursuing her additional claim for an adjustment disorder said to be caused by the rehabilitation process, whilst maintaining her claim that the current incapacity is linked to the original compensable disability, is thereby engaging in conduct which is inappropriate or which should count against her in my consideration of the s 36(4)(b) order.
25 I note that when this matter was argued, and on the assumption that I decided not to order that the s 36 notice be set aside, the parties indicated that they would be in a position to agree on trial orders which would bring all disputed matters on for hearing at an early stage next year.
26 In the circumstances, I decline to make any order in relation to the suspension order of 13 November 2007.
Conclusion
27 The application by Mrs Holliday is dismissed. Thus the dispute over the s36 notice must proceed to judicial determination. The employer's application for revocation of the s 36(4)(b) order made 13 November 2007 is also dismissed. Accordingly, that order will stand.
28 The fact that I have declined to intervene at this stage does not prevent the employer from making application in the future for an order that the suspension order be amended or revoked. Changes in circumstances may give rise to additional matters relevant to the exercise of my discretion which make it appropriate to reconsider the current suspension.
[1] Holliday v Unisure Pty Ltd (Flinders University of SA) [2006] SAWCT 16.
[3] Dispute no. 5570 of 2007 arising out of a notice of work injury dated 16 September 2007 (Exhibit R1).
[4] The decision of 3 March 2006 was restricted to a finding that Mrs Holliday suffered an aggravation of a depressive condition associated with a pre-existing bipolar disorder, and that employment was a substantial cause of the aggravation and that there was a compensable disability - no finding was made with respect to the existence or extent of any incapacity flowing from the proven compensable injury.
[5] As noted by the Workers Compensation Appeal Tribunal in General Motors-Holden's Automotive Ltd v Papalia A.62/1992, the opportunity to challenge a discontinuance on the basis of a state of satisfaction not being in existence is extremely limited (pp 6 - 7); see also Marunczak v The Corporation (Chep Australia) A.18/1992 at p 12.
[6] [2005] SAWCT 93 at para 5.
[9] [2002] SAWCT 3 at [30 - 31]
[11] [2000] SAWCT 130 at [16] and cases there cited.
Holliday
Unisure Pty Ltd