Supreme Court of Tasmania|1997-02-28|Before: Underwood J

Max Muir v Craig Anthony Dance [1997] TASSC 12; (1997) 7 Tas R 1 (28 February 1997)

Workers Compensation -Assessment and amount of compensation - Weekly payments during incapacity - Other matters - Entitlement to weekly payments dependent on incapacity and a medical certificate supporting the existence of that fact - No prescribed form of certificate - No statutory requirement that certificate limited to supporting the existence of present and/or future incapacity for work - May certify existence of incapacity prior to the medical examination. , A22/1996 (unreported, available on SCALEplus); A44/1993 (unreported, available on SCALEplus); , referred to. (Aust Dig Workers Compensation [200].)

HOBART, 10 February 1997 (hearing), 28 February 1997 (decision)

1. The respondent was employed by the appellant for a short time on the latter's farm at Woodbridge. On 29 April 1995, a considerable time after the respondent left the appellant's employment, the respondent gave the appellant a claim for compensation. The claim was made in the prescribed form as was then required by the Workers Compensation Act 1988, s34(1). In it, the respondent claimed that he suffered "lumbar injury" at about 3.15pm on 29 June 1994. Thus, the claim was made well outside the period prescribed by the Act, s32. The claim form was accompanied by two medical certificates, one of which is central to the issues raised by this appeal and to which I shall refer shortly.

2. The appellant did not dispute liability within the fourteen day period prescribed by the Act, s81A(1) and accordingly, liability to make payments in accordance with the Act was concluded against the appellant. See Ryan v McCain Foods (Aust) Pty Ltd & Anor [1995] TASSC 42; (1994) 4 Tas R 101; Freemasons Homes v Greenwood [1996] TASSC 74; (1996) 5 Tas R 445. However, the appellant wished to dispute liability notwithstanding the passage of time. Accordingly, an application pursuant to the Act, s81A(5), was made by the appellant. The learned Commissioner determined this application in favour of the appellant and ordered "payments to be made to the worker are to cease on next pay period following this order." Thus, the appellant's liability to make payments in accordance with the Act ceased. The respondent accepted that he had no entitlement to weekly payments following the first pay period after the order, but claimed that the appellant had not paid him all the weekly payments to which he was entitled prior to that time. He claimed to be entitled to weekly payments:

(a) from 19 July 1994 to 8 March 1995; and (b) from 7 January 1996 to 1 August 1996.

3. The appellant denied the claimed entitlement upon the basis there were no medical certificates within the meaning of the Act, s69, to support the existence of total or partial incapacity for work resulting from the injury on 29 June 1994 during those periods. On 24 September 1996, the respondent made application to the Tribunal. Although not expressed in these terms, counsel agreed on the hearing of the appeal before me, that the application was properly treated by the learned Commissioner as an application made pursuant to the Act, s42 for an order that the appellant pay to the respondent weekly compensation for the periods:

(a) 19 July 1994 to 8 March 1995; and (b) 7 January 1996 to 1 August 1996.

4. In support of his application in the Tribunal, the respondent relied:

* with respect to the first period, upon one of the two medical certificates that accompanied the claim for compensation; and

* with respect to the second period upon another medical certificate which he had obtained and given to the appellant.

* provide that the worker stated the condition to be caused by "an incident which occurred on (sic) June 1994";

* provide that the injury was stated to be caused by "incident at work while pruning in June 1994";

* give a provisional diagnosis of "lumbar back pain";

* opine that "the condition is consistent with the stated cause"; and

* state that the worker "is unfit for any work" from, in the case of the first period claimed, 19/7/94 to 8/3/95 and with respect to the second period from 7/1/96 to 1/8/96.

6. Prima facie then, the respondent does have medical certificates which support the existence of incapacity during both the periods claimed. Both certificates state that the certifying practitioner examined the respondent, but in the case of the first claimed period of incapacity, the examination was not conducted until 24 April 1995 and, in the case of the second period, not until 11 July 1996. Thus, both certificates certify unfitness for work for a period prior to the date of the medical examination. (In the case of the second period, the examination took place six months after the start, and twenty days before the end of the stated period of unfitness for work and the appellant takes no issue over entitlement to weekly payments for the twenty day period after medical examination.)

7. On behalf of the appellant, Ms Schokman submitted that the documents were not certificates within the meaning of s69 because they were not based upon the medical practitioner's examination of the respondent. In the Tribunal this submission was rejected. The learned Commissioner held that the certificates were "valid" and as the dispute procedure provided by s81A(1) was not invoked, the appellant was obliged to pay until his order made on an application pursuant to s81A(5), took effect.

8. Medical certificates play a central role in the Workers Compensation Act.

* A medical certificate may fix the date incapacity occurred by reason of an injury being a disease (s3(5)).

* A claim for compensation must be accompanied by a medical certificate (s34(1)), but there is no requirement that the terms of the certificate and the claim form be consistent. See Harris v TSS Pty Ltd & Anor A46/1992 at 10.

* In order to be entitled to weekly payments, a certificate signed by a medical practitioner must support the existence of incapacity resulting from the relevant injury (s69).

* Termination of weekly payments is justified if a medical practitioner, who has examined the worker, certifies that he or she holds the opinion(s) referred to in s86(1)(c) and there has been compliance with the procedural requirements of that section.

9. Prior to the amendment that came into operation on 16 August 1995 (Act No 16 of 1995), the only medical certificates required by the Act to be in a prescribed form were those necessary to support a claim for compensation and those necessary to support the fact which gives rise to an entitlement to weekly compensation. A form was prescribed for the former but not the latter. Section 86(1)(c) does not refer to a "medical certificate", but to certification of an opinion held by a medical practitioner. No special form of words is required (Hawkins v Mercury Walsh Pty Ltd A22/1996) but the statute provides that the practitioner who holds the relevant opinion(s) must have examined the worker.

10. Section 69 concerns entitlement to weekly payments. It assumes that there is liability to pay workers compensation in accordance with the provisions of the Act. In the case of claimed entitlement to weekly payments, accord with the Act (as enacted when this claim was made) means:

* total or partial incapacity for work resulted from the injury in respect of which liability exists; and

* the existence of such incapacity is "supported by a certificate ... from a medical practitioner".

11. No form has been prescribed, so what are the essentials of such a certificate? It must be made by a medical practitioner. The Act defines medical practitioner and there is no dispute that the "certificates" are "from a medical practitioner". With respect to certificates made to support discontinuance of weekly payments, it has been held that they must be clear and free from ambiguity. See Osmond v Kemp & Denning Ltd A44/1993; Gibsons Ltd v Jeffrey (1993) 2 Tas R 375; Hawkins v Mercury Walsh Ltd (supra). I see no reason why this fundamental proposition should not also be applied to a document claimed to be a certificate from a medical practitioner supporting the existence of incapacity for work. Whether or not the words of the certificate "support" the existence of the facts necessary to establish entitlement to weekly payments, must be a question of fact in each case. It was not submitted that the two contentious certificates in this case were ambiguous or uncertain. They clearly state that there is total unfitness or incapacity for work during the relevant periods and in that sense, clearly support the existence of the claimed periods of incapacity.

12. The terms of the form that was prescribed for medical certificates that must accompany a claim for compensation assume that the certifying medical practitioner has examined the worker. Section 86(1)(c) requires the certifying practitioner to have examined the worker. But s69 does not require that the worker be examined by the medical practitioner before he or she issues the certificate and no form for the certificate has been prescribed.

13. Miss Schokman submitted that s69 carries the implication that the medical certificate must be based on an examination of the worker and therefore any opinion it expresses with respect to incapacity prior to the date of such examination, is not authorised by s69. I reject that submission. The Act does not say that there must be an examination in the case of a s69 certificate but it does specify that there must be an examination for the making of a valid certificate pursuant to s86(1)(c). There is no warrant for reading words into the Act. I venture to repeat the well known words of Lord Mersey in Thompson v Goold & Co [1910] AC 409 at 420 when his Lordship said, "It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do." There might be a case for reading words into an Act if it is manifestly clear from the tenor of the Act that those words should be read in (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 35 ALR 151), but this is not such a case.

14. Miss Schokman submitted that certification implies personal knowledge of the matters certified. Ordinarily this is the case, for a certificate usually is a "document formally attesting a fact", per Brindsen J in Vurlow v Leighton Nursing Home [1978] WAR 15 at 21. Two observations can be made about Miss Schokman's submission in this case:

* the critical part of a certificate under the Workers Rehabilitation and Compensation Act unfitness for work more often than not, attests to an opinion and not a fact;

* personal knowledge of the certifying officer is not confined to knowledge gained directly by him or her. It may include knowledge acquired from information supplied to the certifying doctor by documents such as radiological reports and hospital notes and from persons such as the worker, his or her spouse and so on.

15. Perhaps the following observation made by Crawford J in Guthrie v Sheriff Pty Ltd (1993 - [1994] TASSC 25; 1994) 3 Tas R 399 at 413, is apposite:

"The legislature was prepared to trust in the general integrity of medical practitioners and that they would act responsibly in the issue of certificates under s86(1)(c) provided that they had examined the worker."

16. That case is authority for the proposition that a medical practitioner may base the opinion he or she expresses in a s86(1)(c) certificate in part, on material other than the examination, including video tape film and, I would add, hospital records, radiological evidence, history and the like. One can easily envisage a case where recourse to medical records might enable a medical practitioner to give a certificate that supports the existence of incapacity without him or her physically examining the worker. One can also easily envisage a case where an examination and recourse to other material such as MRI scans enables a medical practitioner to certify that incapacity for work has, in his or her opinion, existed for a period of time prior to the examination. There is no statutory requirement that the certificate must confine itself to supporting incapacity for work existing at the time it is given or existing at the time an examination is conducted. No complaint is made about a certifying medical practitioner stating that unfitness or incapacity for work will continue for some specified time into the future. Indeed, I understand that is the common form of certification in the case of a claim for weekly payments. Why should such practitioner be prohibited from expressing a similar opinion with respect to some specific time in the past? It is true that in this case the past period in the case of both certificates is very long and one can well understand doubts arising about the existence of incapacity during those periods, but whether there actually was incapacity is an entirely different matter. The only issue raised in the Tribunal and on this appeal was whether the "certificates" comply with the Act, s69(1) and thus confer an entitlement to weekly payments for the periods therein stated. The respondent made a claim for compensation with respect to an injury at work in June 1994. The claim was not made until ten months after the occurrence of the alleged event. It was accompanied by a medical certificate (in addition to one of the two contentious certificates), and by effluxion of time liability to pay compensation in accordance with the Act for incapacity resulting from the injury in June was determined against the appellant. The claim was very late but of necessity, a claim, medical examination (if any) and certification must be made at least some time after the occurrence of the relevant event.

17. It seems to me that once a claim for compensation is made and not contested as prescribed by s81A(1), and incapacity for work actually exists and its existence is supported by a certificate by a medical practitioner, an entitlement to weekly payments arises. There is nothing in the Act to warrant reading down the effect of the sections that so provide to construe them to mean that unless the certification supporting incapacity refers to incapacity existing at and/or after a medical examination there is no certificate supporting incapacity.

18. The Workers Rehabilitation and Compensation Act proceeds upon the following fundamental basis:

* s34(1)(b) assumes, but does not provide, that the medical certificate accompanying the application will not only support the application, but also support the existence of incapacity for work because;

* s81(1) requires the employer to commence making weekly payments within the short period after receipt of the claim therein specified at the risk of being prosecuted for an offence contrary to the Act.

19. Of course, a claim for compensation may not necessarily encompass entitlement to weekly payments. It may only encompass entitlement to other compensation, eg, medical expenses or it may not encompass immediate entitlement to any compensation. In Freemasons Homes of Southern Tasmania v Greenwood (supra) Zeeman J referred to this at 455 - 456 when he said:

"Section 81(1) cannot be read literally. It cannot require that any worker who makes a claim for compensation be paid a weekly payment. The Act, PtVI provides for two types of compensation, namely what is described as basic compensation, which includes weekly payments and lump sum payments in respect of death and specified injuries, and what is described as additional compensation, in respect of medical and other services and travelling expenses. A claim for compensation may be made in circumstances where the worker does not assert an entitlement to a weekly payment at all because no incapacity for work has resulted from the injury. The worker may merely seek payment in respect of medical or other services necessitated by the injury and payable pursuant to the Act, PtVI, Div2. It cannot be the case that s81(1) obliges an employer to commence making a weekly payment to such a worker. It follows that s81(1) is subject to some implied limitations. At the very least it only applies to a claim for compensation which in its terms asserts some incapacity for work because, absent such incapacity, the Act makes no provision for a weekly payment."

20. Section 81(1) imposes an obligation to "commence making weekly payments" within a specified period. It does not say, expressly or by implication in my view, that those weekly payments are only those relating to a period after receipt of the claim. Section 81(1) obviously refers to the weekly payments, entitlement to which is conferred by satisfaction of the conditions set out in s69. It has been held (Pasminco v Simmons A50/1993), again although the Act does not so provide, that where there is incapacity for work, production of a medical certificate supporting the existence of that incapacity for a specified period is in the nature of a condition precedent to entitlement to receipt of payments for that period.

21. For the reasons given I am of the opinion that the two disputed documents are medical certificates that support the existence of incapacity during the two claimed periods within the meaning of s69(1). No other issue was raised in the Tribunal and accordingly I am of the opinion that the learned Commissioner did not err in law in making the impugned order. The appeal is dismissed.

Rehabilitation and Compensation Act 1988

Max Muir v Craig Anthony Dance [1997] TASSC 12;

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Judgment (34 paragraphs)

Max Muir v Craig Anthony Dance [1997] TASSC 12; (1997) 7 Tas R 1 (28 February 1997)

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Legislation Cited (1)

Cases Cited (5)