Workers Rehabilitation and Compensation Act 1988 (Tas), s86(1)(c) and (2).

Gardner v Hansen and Yuncken (Tasmania) Pty Ltd [1996] TASSC 113; (1996) 6 Tas R 248, applied.

Papadopoulos v South Australia 47 SAIR (Pt 2) 317; Golden North Dairies v Hennekam 48 SAIR (Pt 2) 122, followed.

Judgment Number: [2000] TASSC 125

1 An employer may terminate or reduce weekly payments if he has a certificate from an accredited medical practitioner in the terms prescribed by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(1)(c) and (2) and if he has complied with the requirements of the Act, s86(3) and (3A). The statutory prescription for a valid certificate is as follows:

* it must be made by an accredited medical practitioner who has examined the worker;

* it must certify that the medical practitioner's opinion is:

(i) that the worker has wholly recovered or substantially recovered from the effects of the injury in respect of which payment is being made; or

(ii) that the worker's incapacity is no longer due, wholly or substantially, to that injury;

* it must specify the grounds on which the opinion is given.

2 In this case, the appellant's contention in the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") and in this Court was that it had such a certificate, that it had complied with the provisions of the Act, s86(3) and (3A) and that it was therefore entitled to stop making weekly payments when it did.

3 The only material before the Tribunal was the impugned medical certificate, for the parties agreed that the Tribunal should determine, as a preliminary point, whether the certificate upon which the appellant relied complied with the provisions of the Act, s86(1)(c) and (2). It was common ground that in all other respects there had been compliance with the requirements of s86.

4 The Tribunal ruled that the medical certificate did not comply with the provisions of the Act and made an order that the appellant resume making weekly payments. From that order this appeal is brought.

5 It has been judicially determined that to satisfy the statutory requirements, the certificate must clearly, unambiguously and unequivocally comply with the statutory requirements which I have set out. See Gibsons Ltd v Jeffrey (1993) 2 Tas R 375; Osmond v Kemp & Denning Ltd A44/1993. A certificate will be ambiguous if it does not clearly identify the injury in respect of which weekly payments are being made, and relate that injury to any claimed recovery or ongoing incapacity. See Osmond v Kemp & Denning Ltd (supra) at 4 - 5.

6 The requirements of a valid certificate were examined by the Full Court of this Court in Gardner v Hansen and Yuncken (Tasmania) Pty Ltd [1996] TASSC 113; (1996) 6 Tas R 248. In my judgment in that case, I reviewed most of the authorities in this Court that had dealt with this issue. There is no need to refer to them again. The Act prescribes no formal requirements for a certificate. Provided the certificate:

* clearly and unambiguously identifies the injury in respect of which weekly payments are being made;

* clearly expresses the medical practitioner's opinion that the worker has wholly recovered or substantially recovered from the effects of that injury, or that any incapacity is no longer due, wholly or substantially, to that injury; and

* sets out the grounds upon which the opinion is given;

it will comply with the provisions of s86(2). Certificates are to be construed in an ordinary common sense way and no curial gloss is to be placed on the plain words of s86(1)(c) and (2).

7 The certificate in this case was made by Dr Ulman, consultant physician. It is long and detailed. There are 18 separate paragraphs. In the first two paragraphs, Dr Ulman identifies the date upon which he examined the respondent and identifies that the respondent was then "in receipt of a weekly payment of compensation arising from an injury to his lower back which occurred on the 22nd April 1999 and 23rd April 1999". Paragraphs 3 - 6 inclusive deal with the patient's history. In summary, it appears that:

* in August 1997, the respondent was manoeuvring some machinery at work when "he felt his back crunch" causing a sudden onset of pain in the low back and left leg;

* thereafter until 22 April 1999, he suffered intermittent back pain, sometimes radiating to the leg;

* no particularly heavy activity was associated with an onset of symptoms;

* on 22 April 1999, the respondent was at work and lifting about 2 kilograms when he felt a sudden onset of pain;

* the next day at work, there was another onset of pain whilst the respondent was squatting, repairing a puncture.

8 The certificate then details some other matters, including some radiological examinations, and notes that according to the respondent, since 22 April 1999, the back pain has been continuous. Paragraph 12 of the certificate details present symptoms and pars13 - 15 set out the results of the medical examination. By par16, Dr Ulman concluded:

"... that [the respondent] had a mechanical back injury affecting the L5-S1 segment, the L4-5 segment, or both segments, affecting anterior and posterior spinal elements, and not producing dural or radicular involvement."

9 In par17 of the report, Dr Ulman expressed the following opinion:

"Regarding the relatively minor 22.4.1999 and 23.4.1999 incidents, these were in my opinion 'the straw that broke the camel's back' - ie they tore some fibres of the L4-5 discs annulus fibrosis, which were probably previously damaged resulting in either a new bulge of that disc, or an enlargement of a pre-existing bulge. Similarly, his pre-existing L5-S1 degeneration could have been aggravated by the same incidents."

10 The last paragraph concludes with this sentence:

"It follows that in my opinion [the respondent's] ongoing incapacity is no longer due, wholly or substantially, to the effects of his injury in respect of which he is receiving a weekly payment of compensation."

11 Thus far, it can be seen that the certificate relates to the second limb of s86(1)(c) and clearly and unequivocally expresses the certifier's opinion that the respondent's incapacity is no longer due, wholly or substantially, to the injury correctly identified in par2 of the certificate, as the injury in respect of which weekly payments are being made. To be valid, the certificate must also specify the grounds upon which that opinion is given. Paragraph 18 of the certificate, (excepting the last sentence already set out above) is as follows:

"[The respondent's] 22.4.1999 and 23.4.1999 work activities or injuries comprised minor trauma and so the disc fibres could have been torn equally during non work activities. In other words, with knowledge of [the respondent's] pre 22.4.1999 low back history, his pre 22.4.1999 work and non work activities, all his imaging results, and the minor trauma of the 22.4.1999 and 23.4.1999 incidents, in my opinion hypothetically had the 22.4.1999 and 23.4.1999 incidents not occurred, on the balance of probabilities, [the respondent] would have found himself, by the date of my 29.12.1999 assessment, with a similar partial work incapacity due to a similarly trivial trauma resulting from an inevitable trivial and unremarkable event which would have occurred between 23.4.1999 and the date of my assessment on 29.12.1999. In other words, due to the underlying vulnerability in [the respondent's] condition, gauged by the trivial events of 22.4.1999 and 23.4.1999, it is my opinion that, on the balance of probabilities, it was inevitable that [the respondent] would have experienced further injuries of perhaps a trivial and unremarkable nature which would have given rise to incapacity on or by the 29th December 1999 ...".

12 With respect to that paragraph, the Tribunal said, at par8:

"If I have properly interpreted Dr Ulman's certificate then I believe it to be fatally flawed. This is so because the certificate contains a fundamental contradictions [sic]. On the one hand, it purports to attribute the worker's incapacity present at the time of Dr Ulman's examination to speculative and unidentified minor trauma yet on the other hand it accepts the presence of an ongoing partial incapacity for work arising from the April 1999 injury. In my opinion, the certificate in this form falls a long way short of making it clear to the worker and / or his adviser in precise and unambiguous terms the basis upon which his weekly payments are being terminated. Particularly, the certificate in this form is incapable of making clear the matter or matters which the employer contends are the entire or substantial cause of his incapacity separate from his work injury. For this reason it is my view that Dr Ulman's certificate dated 16 February 2000 is not sufficient for the purposes of Section 86(1)(c). I should say that I have reached this view without any consideration of the merits of those opinions expressed by Dr Ulman in his certificate. Such a consideration would be clearly inappropriate upon a determination of this preliminary matter."

13 Whether or not a certificate complies with the statutory prescription enacted by the Act, s86(1)(c) and (2), is a question of fact. Any error of fact in the Tribunal will not become an error of law unless the fact found is one which no tribunal, properly instructed as to the law and acting reasonably, could have found. In its reasons for judgment the Tribunal summarised Dr Ulman's opinion as expressed in par18 of the certificate in the following way, at par5:

"1) That the worker, because of pre-existing degeneration of some spinal discs, had an underlying vulnerability to being made partially incapacitated for work by minor trauma.

2. That as a consequence of incidents which 'comprised' minor trauma occurring in the workplace on 22 April and 23 April 1999, the worker sustained injury in that he 'tore some fibres of the L4-5 discus annulus fibrosis'. These incidents could also have aggravated the worker's pre-existing L5-S1 degeneration.

3. That as a result of that injury sustained in April 1999, the worker was rendered partially incapacitated for work and that incapacity continues.

4. That had the worker not been made partially incapacitated as a result of the injury occurring in April 1999, other minor trauma would probably have made the worker similarly incapacitated by the time of his examination by Dr Ulman because of his underlying vulnerability."

14 Mr Dockray, who appeared as counsel for the appellant on the hearing of the appeal, accepted that pars1, 2 and 4 were correct, but argued that the second part of par3 was not correct. It seems to me that all four points are a legitimate construction of the certificate. The incapacity that continues is pain, restriction of movement and inability to work. There is no doubt that it is Dr Ulman's opinion that this state of affairs has continued unabated since 22 or 23 April 1999. However, it is equally clear that he is of the opinion that that incapacity is (at the date of his examination) no longer wholly or substantially due to the effects of the relevant injury. There is no inherent ambiguity or contradiction thus far. It is equally clear from the certificate that the grounds of Dr Ulman's opinion are that had the events of 22 and 23 April not occurred, some other equally trivial event would have occurred between those dates and the date of the examination, and that event would have produced the same incapacity for work. Thus, Dr Ulman reasoned, at the date of the examination, the incapacity is no longer wholly or substantially due to the compensable injury. There is no ambiguity about the grounds upon which Dr Ulman based the opinion he has expressed. It may be that a lawyer would disagree with the opinion and/or the grounds for it. However, Dr Ulman is not to be criticised for not knowing the finer points of causation and the workers compensation law as expounded in cases such as Howell v Uniting Church A8/1990; Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246; Bushby v Morris (1980) 1 NSWLR 81; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, and the like. It is not the function of the Tribunal to examine the reasoning of the certifier and subject it to legal analysis. The Act, s86(1)(c) and (2) does not provide that the grounds must stand up to scrutiny and legal analysis. If grounds are given and they relate to the opinion and can be understood, then the certificate complies with the statutory prescription enacted by subs(2). It may be that the grounds are so unclear or so ambiguous or so unrelated to the opinion that it might be said that the certificate did not comply with the Act, but that cannot be said about this certificate.

15 In Papadopoulos v South Australia 47 SAIR (Pt 2) 317 at 324, Haese J said:

"All that I am concerned with is whether there appears in the document under challenge a statement of the grounds upon which the opinions certified are based. To my mind if the certified opinion is clear (which it is), unless the stated grounds are so incomprehensible, incompatible with the opinion, irrational upon their face or totally lacking in relevance to the opinion certified (bearing in mind that it is a medical opinion) so as not to constitute grounds supportive of the certificate to which they relate, then it is not for the Court to enter upon a minute scrutiny of the semantics employed in the statement of such grounds."

16 In Golden North Dairies v Hennekam 48 SAIR (Pt 2) 122 at 129, Olsson J said:

"... whilst, in certain cases, the statement of grounds of the opinion of the medical practitioner might, by its very nature, necessarily be so inconsistent with the certification as to invalidate it (eg, by indicating that the medical practitioner has, for example, directed his mind to the wrong injury or that the certification is in relation to total recovery whereas the grounds unequivocally show that there is only partial recovery), in general it is not the province of the Court under this Section to go behind the basic certification and consider the reasonableness or otherwise of the grounds which lead to the certification. ..."

17 In The State of South Australia v Migliore (1982) 49 SAIR (Pt 2) 190 at 195 and 196, Lee J expressed agreement with the statement of Haese J in Papadopoulos v South Australia (supra) and continued:

"... I think that it is sufficient in most cases to enquire first whether the purported grounds are in truth reasons for the opinion and not merely a restatement of the opinion itself and second whether the grounds relate to and are consistent with the opinion."

18 All these cases were cited with approval by Wright J in Osmond v Kemp and Denning Ltd (supra) at 5 as apposite to the provisions of the Act, s86(2). I agree. The application of these principles leads to the conclusion that error of law occurred in the finding that the certificate of Dr Ulman was not in accordance with the provisions of the Act, s86(1)(c) and (2). It seems to me that in this case the parties would have done better had they avoided the preliminary point and got on with the real question of whether the respondent's undoubted incapacity was no longer wholly, or substantially, due to the effects of the injury in respect of which he was receiving weekly payments.

19 The appeal is allowed and the order is quashed. The matter referred is remitted to the Tribunal to be determined in accordance with law.