Ltd v Saunders

of which is attached and marked with the letter 'A1'. 3. On the 6th August 1992, the Corporation in accordance with section 53(5) and (6), gave the appellant notice in writing that the claim was rejected and a statement of a ground of rejection. Attached and marked with the letters 'A2' is a copy of that notice. 4. The worker applied for review by notice in the prescribed form dated the 1st September 1992. Attached and marked with the letter 'A3' is a copy of that application. 5. On the review, the Review Officer set aside the decision of the Corporation on the grounds that the worker sustained a secondary disability to which his employment contributed. However, in addition he determined that income maintenance be paid to the 26th October 1992 only, being the period the worker was incapacitated by the secondary disability. Attached and marked with the letters 'A4' is a copy of the decision of the review officer. 6. The worker appealed the review officer's decision and asserts inter alia, that the Review Officer should have confined himself to a consideration of the decision under review, namely, whether there was an injury arising out of or in the course of employment. 7. Counsel has joined in requesting in all the circumstances the Tribunal state a case to the Full Supreme Court, pursuant to section 99(1) of the Workers Rehabilitation and Compensation Act, 1986 and the Tribunal has decided to accede to that request. 8. Accordingly, the Workers Compensation Appeal Tribunal asks the Full Court of the Supreme Court, by way of case stated, the following question of law:- 'Was the Review Officer entitled to consider whether the worker was incapacitated and, if so, the period of incapacity, or was the Review Officer, by reason of section 96(1), restricted to a consideration of the topic whether the disability arose out of or in the course of employment, and therefore, pursuant to section 30(2)(a), compensable.'" 2. The jurisdiction of a Review officer is defined by section 96 of the Workers Rehabilitation and Compensation Act 1986; the relevant parts of which are as follows: "96. (1) Where an application for review is referred to a Review Officer, the Review Officer shall conduct a review of

the decision to which the application relates. ... (2) On a review under this section, the Review Officer shall make a fresh determination of the matters to which the decision subject to review relates. ... (4) Where the Review Officer arrives at a decision that differs from the decision under review, the decision of the Review Officer shall take effect in substitution for that decision." 3. The Review Officer exercises original jurisdiction, Simpson Ltd v Arcipreste [1989] SASC 1951; (1989) 53 SASR 9 per Cox J at 10, and must consider the matter de novo; Santos Ltd v Saunders (1988) 49 SASR 556 per von Doussa J at 568. The Review Officer must therefore consider the material before the Corporation as well as evidence given before him and must have regard to matters and events occurring after the Corporation's determination. The Review Officer's jurisdiction is limited, however, to a review of the decision of the Corporation (section 96(1)) and his determination must be restricted to "the matters to which the decision subject to review relates" (s.96(2)). The Review Officer is therefore precluded from making a determination as to matters which were not the subject of the determination of the Corporation: Wiechmann v Lovering and Workcover Corporation (1992) 59 SASR 203. He is required, however, to make a fresh determination, that is to say the determination of the matters to which the decision of the Corporation relates, which the Corporation ought to have made having regard to all the information before the Review Officer including information as to matters and events occurring after the determination. The jurisdiction of the Review Officer therefore extends to the making of any determination which can fairly be said to be within the scope of the matters to which the Corporation's decision relates. 4. To answer the question stated to this Court, it is necessary to identify the matters to which the decision reviewed relates and to define their scope. The Corporation had before it a claim for compensation made pursuant to section 52 of the Act. It was made on the form approved by the Corporation pursuant to section 52(1)(a). That form provides for personal particulars of the worker and for details of the injury and accident causing it. It does not provide for particulars of any pecuniary claim. 5. Division 1 of Part IV of the Act deals with the conditions governing the compensability of disabilities and provides (section 30(1)) that disability is compensable if it arises from employment. The following Divisions of Part IV provide for various entitlements to compensation flowing from the existence of a compensable disability, that is to say compensation for medical expenses, compensation for property damage, compensation for income maintenance, compensation for non-economic loss and compensation payable on death. 6. The claim envisaged by section 52 is a claim for compensation. It is not a claim to have a disability accepted as compensable. A claim for compensation made pursuant to section 52 must be for one or more of the entitlements to compensation conferred by the Act. It is surprising that the prescribed form does not provide for particulars of the pecuniary claim, but the structure of the form cannot influence the interpretation of the Act. This view of the nature of the claim under section 52 receives some confirmation from subsections (6a) and (7). The former contemplates a claim under the section limited to medical expenses under section 32. The latter defines the prescribed period within which a claim for compensation must be made as commencing, not from the onset of the disability as might be expected if the claim related to acceptance of the disability as compensable, but from the day on which the entitlement to make the claim arises. The entitlement arises when the worker incurs one or other of the heads of expense or loss for which compensation is payable. 7. The claim which was before the Corporation was therefore a claim to be compensated under one or more of the heads of entitlement provided in the Act. It is clear from the reasons for decision of the Review Officer that the Corporation regarded itself as seized of a claim for income maintenance. It made interim payments by way of income maintenance pending its decision. 8. The Corporation notified the Worker of its determination in the following terms: "Your claim for `strain lower back' has been denied. The reasons for denying your claim are as follows: The disability sustained on 10.3.93 did not arise out of or in the course of employment and therefore pursuant to Section 30(2) (a) is not compensable. In addition pursuant to Section 53(3)(b) you have failed to submit to an examination by a recognised medical expert nominated by the Corporation, reasonably required to determine the claim. The Review Officer, after hearing oral evidence from the worker and considering medical reports, made the following determination: "Accordingly, pursuant to section 96 of the Act, I set aside the decision of the Corporation made on 6 August 1992 and substitute a determination to accept the claim and for income maintenance (to be adjusted accordingly for partial incapacity) to be paid up to 26 October 1992." 9. The claim which was rejected by the Corporation was a claim, in my opinion, for compensation by way of income maintenance. If the Corporation had decided that there was a compensable disability, it would have been obliged to determine the amount and, at least in due course, the duration of the income maintenance. These were therefore matters to which the adverse decision related. In reversing the Corporation's decision to reject the claim for compensation, the Review Officer was required to award the compensation to which, on the information before the Review Officer, the worker was entitled. 10. The worker's application for review specified the decision which he wished to have reviewed as "Claim for 'strain lower back' being denied due to not arising out of employment". I do not think that the description of the decision to be reviewed in an application for review can limit the scope of the Review Officer's power to make a fresh determination of the claim for compensation. There was no suggestion of a denial of natural justice by reason of any lack of notice or awareness that the Review Officer would determine incapacity and the duration of incapacity. 11. In my opinion the determination of the Review Officer is within jurisdiction and the question should be answered: In reviewing the Corporation's decision as to the worker's claim for compensation and in making a fresh determination, the Review Officer was entitled to determine the worker's entitlement to income maintenance and in so doing to consider whether the claimed disability had resulted in incapacity for work and the period of that incapacity.

At a glance

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Decision date

Before

Source

Judgment (9 paragraphs)

IOSIV CRISTEA v. THE CORPORATION (CCA SNACK FOODS (SMITH FOOD CO)) No. SCGRG 93/1911 Judgment No. 4356 Number of pages - 5 Workers' compensation (1993) 61 SASR 487 [1993] SASC 4356 (23 December 1993)

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Legislation Cited (2)

Cases Cited (4)