Workers compensation - Assessment and amount - Cessation of payments - Application by worker for continuance of payments - Question for court - Onus of proof. Workers Compensation Act 1988 (Tas), ss81A(5), 86(1)(c), (3), (4). Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296 at 302, applied. Carr v City of Glenorchy A54/1988, distinguished. Burgess v Precise Timbers Pty Ltd (1991) Tas R 375 (NC 20); Chorley v Hazell Pty Ltd A17/1993; Atkinson v Nipper Cleaning Services Pty Ltd A105/1993, referred to.

ZEEMAN J This is an appeal against an order of the Workers Compensation Commissioner whereby he dismissed a reference made by the appellant pursuant to the Workers Compensation Act 1988 ("the Act"), s86(4) consequent upon the service upon him by his employer, the first respondent, of a notice of intention to terminate the weekly payment of compensation being made to him. The application by which the reference was effected also purported to be made under the Act, ss42 and 77, but in substance the Commissioner treated the application as amounting to no more than a reference pursuant to s86(4). There is no reason to consider that to have been inappropriate. The second respondent was joined as a party to the reference by operation of s45(2), presumably on the basis that it was the relevant licensed insurer of the first respondent, although there appears to have been no valid reason for this to have occurred. On various occasions judges of the Court have disapproved of the practice of the indiscriminate service of notices under ss42(5) and 45(1) resulting in insurers being made parties where this is quite unnecessary (eg Tasmanian Government Insurance Office v Priest A57/1993). The practice should cease.

2. On 13 April 1992 the appellant was injured whilst engaged in his duties as a factory hand in the employ of the first respondent. The circumstances in which the appellant was injured are of no present relevance. The injury was in the nature of a soft tissue injury to the back. The appellant claimed to be wholly incapacitated for work as a result of the injury and made a claim for compensation. The claim was accepted and weekly payments, calculated on the basis of total incapacity, commenced.

3. The appellant was still in receipt of the weekly payment when, in April 1993, the first respondent caused to be served upon the appellant a notice of intention to terminate the weekly payment accompanied by the certificates of two medical practitioners, each of which purported to satisfy the requirements of the Act, s86(1)(c) and (2). On or about 21 July 1993 the applicant filed an application whereby, inter alia, he referred the matter to the Commissioner for determination pursuant to s86(4). Insofar as the application was made under s86(4), it is in the following terms:

"I, JOHN MICHAEL RYAN of Boys Road, Smithton in Tasmania,

hereby refer to the Workers' Compensation Commissioner the

following for hearing and determination:-

1 Whether my employer acted in accordance with the

Workers' Compensation Act 1988 when it served upon me a

notice of intention to terminate weekly payments of

compensation being made to me by my employer, McCain Foods

(Aust) Pty Ltd, together with what purports to a

'certificate from a medical practitioner' in respect of

injuries sustained by me in the course of my employment with

McCain Foods (Aust) Pty Ltd in or about 29th April, 1992.

2 In the event that the employer acted in accordance with

the provisions of the Workers' Compensation Act 1988, I

seek to dispute the termination of weekly payments on the

basis that I have not wholly or substantially recovered from

the effects of the injury sustained on the 29th April, 1992,

in respect of which payments of weekly compensation were

being made to me by my employer, McCain Foods (Aust) Pty

Ltd."

4. One of the certificates served on the appellant was given by Mr E D McIntyre, an orthopaedic surgeon, and the other by Dr Russell Pargiter, a psychiatrist.

5. The certificate given by Mr McIntyre is in the following terms:

"I MR E D MCINTYRE, of 35 BALFOUR STREET, LAUNCESTON

hereby certify that I have examined the worker, JOHN

MICHAEL RYAN, and that in my opinion the worker has wholly

or substantially recovered from the effects of the injury he

alleges occurred when he injured his back in the course of

his employment, on 29 APRIL, 1992 and that any incapacity he

has is no longer due wholly or substantially to that injury.

The grounds of my belief are as stated in my report dated

the 9 DECEMBER, 1992 which is attached, hereto."

6. Forming part of the certificate is a copy of the report referred to which sets out the relevant history, treatment, progress and findings on examination and concludes with Mr McIntyre's opinion. The certificate of Dr Pargiter is in similar terms, except that it refers to his report of 4 March 1993, a copy of which forms part of the certificate. That report concludes with Dr Pargiter's opinion after setting out the relevant history and his observations as to opinions expressed in other medical reports.

7. On 10 October 1994 the learned Commissioner heard argument as to the sufficiency of the certificates. On 2 November 1994 he ruled that each satisfied the requirements of s86(1)(c). The substantive hearing of the reference proceeded on 22 November 1994 and on 21 December 1994 the learned Commissioner ordered that it be dismissed. It is appropriate to express some concern about the very long period of time which elapsed from the filing of the application until the hearing of the preliminary argument on 10 October 1994. The termination of a weekly payment is a very serious matter, capable of having financially disastrous consequences for a worker. The scheme of the Act is such that it envisages the prompt determination of disputes. It is not possible to ascertain from the materials transmitted to this Court the reasons for the long delay, except that an adjournment of a month was granted to suit the convenience of the appellant's solicitor. I do not wish to be taken as being in any way critical of the Commissioner because I suspect that it may well be that largely the delays were as the result of matters beyond his control. If it is the case that the resources made available to the Commissioner are so limited that long delays are inevitable then the result is that the requirement of the Act, s49(1)(b) that proceedings are conducted "with as much expedition, as the requirements of the Act and a proper consideration of the matters to be resolved permit" is incapable of being satisfied.

8. Before I turn to the grounds of appeal I refer to an unusual feature of this case, namely that the first respondent served two medical certificates. No ground of appeal refers to this aspect of the case and it is not something to which the learned Commissioner made any particular reference in the reasons for his determination. Nevertheless, it is necessary to make some reference to this aspect of the case as it is relevant to the question as to what "matter" was referred to the learned Commissioner pursuant to s86(4).

9. A medical certificate served pursuant to s86(3)(b) has particular significance insofar as it plays the key role in defining the ambit of the "matter" referred under s86(4). I adhere to what I said in Goscombe v Cadbury Schweppes Pty Ltd A23/1993, as explained in Guthrie v Sherriff A20/1994. In Goscombe v Cadbury Schweppes Pty Ltd (supra) I said, at 12-13:

"Where an employer acts in accordance with s86(3), relying

upon a certificate for the purposes of s86(1)(c), the

'matter' extends beyond the mere body of facts concerning

the form of the certificate and compliance with s86(3). It

incorporates the facts upon which the certificate is based

and the opinions expressed in it. 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 or that

the incapacity was no longer due wholly or substantially to

that 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'.

If a claimed entitlement so based is sought to be relied

upon by an employer he must invoke the relevant procedure

provided for by s86 or s88 in relation to such other state

of affairs."

10. I explained that in Guthrie v Sherriff (supra) at 4 in the following terms:

"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."

11. It follows that where a notice of intention to terminate a weekly payment is served under s86(3)(a) and it is accompanied by the certificates of two medical practitioners, each satisfying the requirements of s86(1)(c) and (2), a subsequent reference under s86(4) in reality amounts to the reference to the Commissioner of two separate "matters". As to each certificate the factual inquiry by the Commissioner is required to be as to the state of affairs found to exist by the medical practitioner who gave the certificate. In the present case the Commissioner does not appear to have approached his task in this way. It is unnecessary to do more than to draw attention to this aspect of the appeal for the benefit of the Commissioner who will rehear the reference pursuant to the order which I intend making.

12. The notice of appeal contains a number of grounds. I have found it unnecessary to consider all those grounds and confine my attention to the following:

"1 That the Commissioner erred in law in that he held that

the medical certificates were not so ambiguous so as to

ineffective (sic) at law.

2 That the Commissioner erred in law in that he misdirected

himself as to the onus of proof by holding that the worker

carried an initial onus of proof to demonstrate that at the

time either that he was examined or certificate was issued

and his payments terminated that he was not wholly or

substantially recovered from the effects of the injury or

that any incapacity he had was due wholly or substantially

to that injury."

13. The first ground seeks to challenge the sufficiency of the medical certificates on the basis that each certifies to the appellant having wholly or substantially recovered from the effects of the relevant injury and also to any incapacity of the appellant being no longer due, wholly or substantially, to that injury. The appellant submits that a certificate in such a form is not a certificate within the meaning of the Act, s86(1)(c), which provides as follows:

"(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;"

14. The appellant submits that, in order to conform to the requirements of s86(1)(c), a certificate must either certify that a worker has wholly or substantially recovered from the effects of the relevant injury or that the worker's incapacity is no longer due wholly or substantially to that injury. He submits that a certificate which certifies to both those matters does not conform. Counsel for the appellant accepts that a certificate that a worker has wholly or substantially recovered, without specifying one or the other, satisfies the requirements of s86(1)(c). Similarly he accepts that a certificate that a worker's incapacity is no longer due, wholly or substantially, to the relevant injury, without specifying one or the other, satisfies those requirements. Those concessions accord with the view which I expressed in Guthrie Pty Ltd v Sherriff (supra) at 9-10. Nevertheless the appellant submits that unless a certificate selects one or other of the limbs of s86(1)(c) it is not a certificate within the meaning of that paragraph.

15. The two alternative bases upon which a certificate may be given under s86(1)(c) are not necessarily mutually inconsistent. A worker who has wholly or substantially recovered from the effects of the relevant compensable injury may nevertheless be suffering from an incapacity, but being an incapacity which no longer has the requisite degree of connection with that injury. The question must be asked whether a certificate which certifies to both states of affairs is a certificate in which a medical practitioner has certified to a relevant matter. Clearly it is. The fact that it certifies to two relevant matters, being matters which are capable of co-existing, does not derogate from the efficacy of the certificate. The word "or" lastly appearing in s86(1)(c) does not operate so as to limit what may be contained in a certificate. In order to satisfy the requirements of s86(1)(c), a certificate must satisfy at least one or other of the statutory requirement. It matters not that it satisfies both. Ground 1 fails.

16. Ground 2 seeks to attack the following observations made by the learned Commissioner in the course of the reasons for his decision:

"The worker must demonstrate to me, and carries an initial

onus of proof, to demonstrate to me that at the time either

that he was examined or the certificate was issued and his

payments terminated that he was not wholly or substantially

recovered from the effects of the injury or that any

incapacity he had was due wholly or substantially to that

injury."

17. Plainly those observations demonstrate fundamental legal error. The appellant did not carry the onus of proof referred to by the learned Commissioner. As I understand the submissions made by counsel for the respondents, he conceded as much but sought to persuade me that notwithstanding his erroneous statement concerning the onus of proof the learned Commissioner did not act on it and applied the correct test.

18. It is appropriate to consider what onus, if any, the appellant carried in the proceeding before the learned Commissioner. Counsel for the appellant referred to a number of authorities, and in particular to the judgment of Cox J in Carr v City of Glenorchy A54/1988, which was referred to with approval by the Full Court in Popovic v Murray [1990] TASSC 51; (1990) Tas R 158 at 171. The authorities referred to concerned the Worker's Compensation Act 1927. Carr v City of Glenorchy was an action brought by a worker in which he sought to recover payments of weekly compensation. He had been in receipt of a weekly payment in respect of the relevant injury, but that payment had been terminated unilaterally by the employer. Termination of a weekly payment was permitted only if authorised by the 1927 Act, s21(1). The question arose as to what onus rested upon the worker where there had been a termination of a weekly payment.

19. Cox J answered that question in the following terms (at 5):

"... in the event of unilateral termination by the employer

thereby forcing the worker to take proceedings to enforce

his right to compensation, although the onus would remain on

him to establish his basic entitlement to compensation under

the Act by demonstrating that injury through accident in

accordance with s5 had resulted in incapacity productive of

economic loss, once he had done this by admission or

evidence it would be for the employer to prove as

justification for termination which of the circumstances set

out in s21(1) is relied upon."

20. The submissions addressed by the appellant assumed that those observations remain applicable to a reference under the Act, s86(4) but I do not consider that to be correct. There is no occasion, on the hearing of such a reference, for a worker to be required to establish any initial entitlement to compensation as was the position under the 1927 Act where the worker brought an action because that right necessarily already has been established. That is the effect of the decision of the Full Court in Burgess v Precise Timbers Pty Ltd (1991) Tas R 375 (NC 20).

21. The Act was amended subsequent to that decision but the amendments do not affect the essential effect of that case, as I explained it in Chorley v Hazell Pty Ltd A17/1993, namely that the commencement of a weekly payment, without the employer disputing his liability to make it, establishes the right of the worker to compensation and to the continuation of the weekly payment until the employer is authorised to terminate or reduce it by an express provision of the Act or an order of the Commissioner. The only relevant effect of the amendments is that s81A(5) now provides authority for the Commissioner to review a weekly payment in circumstances where, on the basis of what was held in Burgess v Precise Timbers Pty Ltd (supra), there previously was no such authority. That subsection has not been invoked by the respondent.

22. What s86(4) permits is a judicial review of a decision of the employer to terminate or reduce a weekly payment upon an identified basis, namely the basis disclosed by the certificate. On a reference under s86(4) a worker carries no onus of establishing his basic entitlement to weekly compensation under the Act, s25(1) because that entitlement has been established by the commencement of the weekly payment. The entire onus is upon the employer to establish, if he can, that, within the parameters of the "matter" referred to the Commissioner, the circumstances are such as to justify the termination or reduction of the weekly payment (Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296 at 302).

23. Contrary to the submissions made by the respondent, I am not satisfied that notwithstanding his erroneous statement the learned Commissioner applied the correct test as to the onus of proof as I have expressed it. Indeed, even if the test laid down in Carr v City of Glenorchy (supra) remains relevant to s86(4), I am not satisfied that the learned Commissioner applied that test. I have found it difficult to follow some of the learned Commissioner's reasoning but he does appear to have concluded that the evidence was such that he was unable to determine whether the appellant was entitled to a reduced weekly payment of compensation on the basis of a partial incapacity for work. In particular, his Honour made the following observations:

"Clearly on the authority of Atkinson v Nipper Cleaning

Services Pty Ltd T/A Burrells Hytech Cleaning Service

A105/1993 I have the ability to determine related questions

on a Section 86(4) consideration. See Underwood J at page

2. The facts which lead to my finding that the termination

of weekly payments was lawful are those that I have set out.

They are namely that at the time of examination and at the

time of certification the physical effects of the injury had

disappeared to the extent that the only related question was

the issue of pain and that that pain was not wholly or

substantially due to the effects of the injury and also

that the psychological functional element is unrelated to

the original injury. But I did not have in front of me

enough evidence as to the ability of the worker to earn to

enable any consideration to be given as the degree of or

amount of partial incapacity. It would therefore require

the worker to commence fresh proceedings in that regard

because I consider it inappropriate to exercise my

jurisdiction on such a case (see Underwood J in Atkinson's

case at pages 2/3)."

24. With respect, that reasoning is internally inconsistent and the reference to Atkinson v Nipper Cleaning Services Pty Ltd is misconceived. That was a case where an employer had given notice under s86(3) on the basis of the worker's return to work and it was held that the evidence before the Commissioner on a reference under s86(4) did not justify a termination, although it did justify a reduction. Cox J, with whom Underwood J agreed, said at 6:

"... that as the employer only showed a return to work in

respect of a portion of the worker's employment, termination

of the whole of the weekly payment was not justified."

25. Underwood J made the following additional observations, at 2-3:

"In this case, the facts that led to the finding that the

termination of weekly payments was lawful, immediately gave

rise to the question of entitlement to a lesser weekly

payment upon the conversion of a total incapacity into a

partial incapacity. It would be contrary to the tenor of

the Act and the wide meaning of the word "matter" to require

the worker to commence fresh proceedings for weekly payments

on a partial incapacity when the commissioner then had all

the relevant material before him. Of course, in some cases,

it may be inappropriate to exercise the wide jurisdiction

conferred by s86(4) and determine related issues but this is

not such a case."

26. If by those observations Underwood J was intending to convey that where on a reference under s86(4) consequent upon an employer having given notice of intention to terminate a weekly payment the employer fails to establish that there is no longer any entitlement to weekly compensation but does establish that a reduction is appropriate, the reference may be dismissed, then, with respect, I would disagree. I consider such a view to be inconsistent with the view expressed by Cox J in the passage which I have set out and also with the views expressed by the third member of the court, Slicer J, at 5. However I tend to think that Underwood J was directing his mind to the inappropriateness of such a course in the particular case rather than purporting to lay down any rule of general application.

27. In the present case the first respondent asserted a right to terminate. The learned Commissioner appears to have concluded that he was persuaded that the appellant was not entitled to a continuation of a weekly payment at an undiminished rate, but that he might be entitled to payment at a reduced rate. I say that it so appears, because the learned Commissioner said that he did not have sufficient evidence before him to enable a determination of the degree of partial incapacity to be made, although in the preceding sentence of his reasons he appears to express a view that no relevant incapacity remained. The dismissal of the reference in circumstances where partial incapacity to an unascertained extent was established was entirely unjustified. On an application of the relevant test as to the onus of proof as I have formulated it, or as it was formulated in Carr v City of Glenorchy, a conclusion by the Commissioner that he was not persuaded that the appellant was not entitled to any weekly payment could not have justified a termination because the respondent would not have discharged the onus of proving that the appellant was not entitled to any weekly payment.

28. The learned Commissioner proceeded upon the basis that it was for the appellant to establish the facts which would enable there to be a quantification of the appropriately reduced weekly payment. The appellant carried no such onus of proof. It was for the respondent to establish that a termination was justified. The learned Commissioner does not appear to have been affirmatively satisfied as to that because he said that he did not have sufficient evidence before him as to the degree that the appellant was partially incapacitated. Not being so satisfied he could not have concluded that a termination was appropriate. It was still incumbent upon him to consider whether there should be a reduction of the weekly payment. The respondent carried the onus of proof on that issue. A reduction could only be ordered to the extent that the respondent affirmatively satisfied the Commissioner that there should be a reduction. If the employer neither established that there should be a termination nor facts which justified ordering a particular reduction the result should have been that the reference be dismissed. A dismissal of the reference because the appellant had not established facts enabling the Commissioner to assess a reduced weekly payment after termination had not been justified demonstrates that the Commissioner applied the incorrect burden of proof.

29. The primary statement of principle made by the learned Commissioner as to the onus of proof imposed upon the appellant was clearly wrong. It appears that that statement of principle was applied by the learned Commissioner. In any event it cannot be said that he did not apply it. As he stated the principle it must be assumed that he did apply it unless it is clearly shown that he did not. Ground 2 is made out.

30. It follows from my conclusion that ground 2 is made out that the order and determination appealed from cannot stand. The parties were agreed that if I were to reach that conclusion the reference ought to be reheard by another Commissioner. I agree that that is the appropriate course. Accordingly, I order that the appeal be allowed, that the order and determination of the Workers Compensation Commissioner in respect of reference 769/1993 be set aside and that the reference be remitted to be heard by a part-time Commissioner appointed pursuant to the provisions of the Act.