There were 11 grounds in the notice of appeal but grounds 4 and 6 were abandoned by the appellant's counsel. I will deal with the remaining grounds.

"1 The Tribunal erred in failing to make findings of fact as to the labour market in which the respondent was working or might reasonably be expected to work;

2 The Tribunal erred in failing to make findings of fact as to the nature of the work required to be performed by persons in that labour market;

3 The Tribunal erred in failing to make findings of fact as to whether the respondent suffered from any physical disability for actually doing such work;

...

10 The Tribunal when determining the appropriate test to be applied in relation to the matter referred to it, erred in failing to consider the requirements of s69 of the Workers Compensation Act."

Counsel for the appellant argued these grounds together and based his argument on what was said by Zeeman J in Gulf Industries Pty Ltd v Barnett A43/1996 (unreported, available in SCALEplus) at 6. His Honour stated there that if there is partial incapacity for work, and if it is the result of the relevant injury suffered by the worker, there has not been substantial recovery within s86(1)(c). Reference was made to Arnotts Snack Products Pty Ltd v Yacob (1984 - [1985] HCA 2; 1985) 155 CLR 171 at 178 for the proposition that partial incapacity for work is constituted by reduced physical capacity by reason of physical disability for actually doing work in the labour market in which the worker was working or might reasonably be expected to work. The following passage in the judgment of Zeeman J was relied upon by counsel for the appellant:

"In accordance with the principles governing the requirement that a court or quasi-judicial tribunal state sufficient reasons for its determination, it was incumbent upon the Tribunal to make findings of fact, as at the time that Mr McIntyre gave his certificate, concerning: 1 the labour market in which the respondent was working or might reasonably be expected to work; 2 the nature of the work required to be performed by persons in that labour market; 3 whether the respondent suffered from any physical disability for actually doing such work."

I have formed no opinion on the correctness of that statement in the context of the Gulf case for it is unnecessary that I do so. However, it ought not be regarded as a correct statement of the law with which the Tribunal must comply in its published reasons whenever it is determining, on the hearing of a reference under s86(4), whether a worker had substantially recovered from the effects of an injury in respect of which payment was being made. The law does not require in every such case precise findings of fact concerning such matters as the labour market in which the worker was working or might reasonably have been expected to work, the nature of the work required to be performed by persons in that labour market and whether the worker suffered from any physical disability for actually doing such work. In any event, the parties may not tender sufficient evidence to enable findings about such matters to be made. The law does require an express finding, where the question is raised, concerning whether the worker has substantially recovered from the effects of the injury in respect of which the payment was being made. Sufficient reasons for the determination of that question must appear in the Tribunal's published reasons. There will no doubt be cases where it is unnecessary to make detailed findings of fact about the matters I have cited from Gulf at 6. The point should also be made that the relevant question which it was essential to determine here was not whether there was partial incapacity but whether there had been substantial recovery, as to which the onus of proof rested with the appellant employer and not with the respondent worker (Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101 at 108 - 110).

The learned Commissioner made a finding of fact that at the relevant time, the effects of the injury being suffered by the respondent incapacitated her from returning to work in the employment in which she was working at the time of the onset of her injury. Those effects were found to be pain in the right arm, shoulder and neck. They were found to be due to the injury and to have resulted from it. The Commissioner expressly concluded that there was at least partial incapacity and that conclusion was plainly correct, given the other findings. The ultimate finding that the respondent had not substantially recovered followed logically and reasonably. Grounds 1, 2, 3 and 10 have not been established.

"5 The Tribunal erred in failing to furnish any or sufficient reasons in relation to the finding that the pain in the right arm, shoulder and neck were due to the injury; ... 9 The Tribunal was in error in determining that the evidence of the respondent, by reason of her being a lay person, would cast serious doubt on the opinion of Dr Ingpen that any incapacity of the respondent was to be attributed to the obesity of the respondent;"

These grounds have no merit. The reasons for the finding that the pain was due to the injury were adequately explained. The learned Commissioner accepted the respondent's evidence concerning the history of the pain and that she continued to suffer it following the original incident in September 1994. He found that Mr McIntyre's report supported the respondent's claim in that regard, and he rejected the opinion of Dr Ingpen that obesity was the cause of the respondent's continuing incapacity, a rejection which was clearly open on the history given by the respondent and the opinion of Mr McIntyre. The Commissioner was left with no explanation of the cause other than the claimed injury in September 1994.

The respondent's evidence was that prior to suffering the injury, she had no trouble with pain or in performing domestic chores, despite her obesity, and it was open to be inferred from her evidence that all of her pain and suffering stemmed from the September 1994 injury. It was therefore clearly open to the Tribunal to conclude that the respondent's evidence cast serious doubt upon Dr Ingpen's opinion concerning obesity being the cause of her continuing complaints. Given the opinion of Mr McIntyre to the contrary of Dr Ingpen, the refusal to accept the latter's view was well supported by evidence.

"7 The Tribunal erred in taking into account any evidence that the respondent would develop problems if she returned to work;

8 The Tribunal erred in concluding that evidence that the respondent would develop problems if she returned to work, indicated that she was partially incapacitated for work and may in fact be totally incapacitated for work that she was performing;"

That the respondent would develop problems if she returned to work was a finding clearly supported by the evidence of both medical practitioners and the respondent and it was a most relevant consideration when regarding the question whether the respondent had substantially recovered from the effects of the injury.

The learned Commissioner said that Dr Ingpen "accepted that she would develop problems if she returned to work indicating she was partially incapacitated for work and may in fact be totally incapacitated for the work she was performing". That was not erroneous. Indeed, Dr Ingpen referred to the respondent's "permanent incapacity" and said that if she returned to the same type of repetitive process work, she would almost certainly develop the same or similar symptoms and concluded (inter alia) that she "remains disabled with respect to returning to her previous employment".

"11 The Tribunal erred in determining that the appropriate test to be applied in relation to the matter referred to it was to consider the effects suffered by the respondent at the time the certificate was issued and when she was examined, were such as to incapacitate her from returning to work in the employment in which she was working at the time of the onset of the injury."

This ground is poorly expressed and it is difficult to comprehend its meaning. In support of it, counsel for the appellant pointed to the undoubted fact that Mr McIntyre had only examined the respondent in January 1995 and he submitted that that was not the relevant time which, he further submitted, was the date of Dr Ingpen's certificate. Counsel cited the judgment of Zeeman J in Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35; (1993) 3 Tas R 19 at 39, 40 as authority for that last proposition and in doing so was in error. In that passage, Zeeman J said that the question for a Commissioner was whether, at the time the worker was examined by the medical practitioner who furnished the certificate under s86(1)(c), there had been the degree of recovery referred to in s86(1)(c) or that the incapacity was then no longer due wholly or substantially, to the relevant injury. That statement was corrected by Zeeman J in Guthrie Pty Ltd v Sherriff [1994] TASSC 25; (1994) 3 Tas R 399 at 419 when his Honour acknowledged that the relevant time was the date the medical practitioner gave the certificate for the purposes of s86(1)(c). It is therefore Guthrie's case and not Goscombe's case which is authority for the proposition stated by counsel.

In the course of determining whether, at the time of Dr Ingpen's certificate on 9 November 1995, there had been the degree of recovery referred to in s86(1)(c) or the respondent's incapacity was then no longer due, wholly or substantially, to the relevant injury, the Tribunal was entitled to have regard, as it did, to the evidence of the respondent's medical condition and incapacity prior to the injury, at the time of it and at all times since. I am not persuaded that the learned Commissioner erred in doing so or that a wrong test was in some way applied in the course of the Commissioner's reasons for determining the matter. It is obvious that the Commissioner's findings concerning the respondent's condition and incapacity applied to the time of Dr Ingpen's certificate as well as to the time of the hearing.

None of the grounds of appeal has been established and the appeal will therefore be dismissed.

The learned Commissioner concluded that the respondent was "at least partly incapacitated in the sense that she has effects which are more than trivial or inconsequential and that therefore she could not be said to have substantially recovered". Counsel for the appellant pointed out that the Commissioner only concluded that the respondent was "at least partly incapacitated" and did not conclude that there was total incapacity. He submitted that partial incapacity alone would not have justified the order that weekly payments resume. He further submitted that instead of ordering a resumption of payments, the Tribunal ought to have invited the presentation of further evidence to enable the assessment of the amount of weekly compensation which should be resumed, and quite possibly a reduced amount when compared to what the appellant was paying when it terminated the payment. I suspect that this argument only occurred to counsel while on his feet. He submitted that it was encompassed by grounds 1, 2, 3 and 10, but I do not agree. It is an entirely new matter and is not the subject of a ground of appeal. It does not require determination therefore.

However, I will make some remarks about the argument. It was never the case of the appellant, when before the Tribunal, that there was partial incapacity and that a reduction in the amount of weekly compensation was justified and ought to be ordered. In those circumstances, it is hardly appropriate for the appellant to now claim that the Tribunal erred in law by failing to consider a matter not raised for its consideration by the parties. If an employer seeks to take advantage of s86(1)(c) to terminate weekly payments, and makes no claim to a reduction in the amount of the weekly compensation, "then it must accept that the consequence of a failure to satisfy the Tribunal that termination is justified will be that it is required to continue to make a weekly payment on the basis of total incapacity even though partial incapacity remains". Gulf Industries Pty Ltd v Barnett (supra) at 9. The entire onus was upon the appellant to establish, within the parameters of the "matter" referred to the Tribunal, that the circumstances were such as to justify the course the appellant had endeavoured to take. See Ryan v McCain Foods (Aust) Pty Ltd (supra) at 109 - 112.