Workers Compensation - Assessment and amount of compensation - Weekly earnings - Tasmania - Application to review a weekly payment - Rights determinable as at the date of the application.

In re Keystone Knitting Mills' Trade Mark [1929] 1 Ch 92; George Gibson & Co v Wishart [1915] AC 18, followed.

Australian Newsprint Mills Ltd v Williams [1979] Tas R 234, applied.

Workers Rehabilitation and Compensation Act 1988 (Tas), s88.

Judgment ID Number: [2000] TASSC 163

MMI GENERAL INSURANCE LTD v MERVYN MAXWELL DONNELLY [NO 2]

1 On 21 October 1997, the respondent suffered a low back sprain arising out of and in the course of his employment. Liability to pay compensation was not disputed and weekly payments were made upon the basis that the respondent was totally incapacitated for work. On 13 March 1998 the respondent was examined by Dr Stewart, a medical practitioner retained by the respondent's employer. Dr Stewart issued a certificate dated 22 April 1998, certifying that in his opinion, the respondent had wholly or substantially recovered from the effects of the relevant injury. The notice of intention to cease making weekly payments that accompanied Dr Stewart's certificate was referred to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). The Tribunal held that the respondent had not recovered as opined by Dr Stewart. Accordingly, the only basis upon which the respondent's employer could lawfully terminate or reduce weekly payments was pursuant to an order for same made by the Tribunal upon an application made pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s88(1). See Viney v Roney Management Pty Ltd [1996] TASSC 27; (1996) 6 Tas R 240.

2 In October 1998 video surveillance film of the respondent was taken. In it he was depicted (inter alia) loading and unloading firewood from his four wheel drive vehicle. On 12 April 1999 the respondent was examined, again on behalf of his employer, by consultant physician, Dr Ulman. It was Dr Ulman's opinion that the worker was unfit to resume his pre-injury occupation which involved unrestricted heavy manual work, but that he was fit for a variety of occupations, including factory process worker, taxi driver, delivery driver, storeman, salesman, gardener, caretaker, service station attendant and clerk. Dr Ulman expressed the view that notwithstanding his capacity to engage in that kind of work, the respondent would be restricted in lifting certain weights and in doing certain heavier work.

3 On 8 February 1999 the appellant, who is the respondent's employer's licensed insurer, made application to the Tribunal pursuant to the provisions of the Act, s88(1). The application sought a review of the weekly payments of compensation being made to the respondent in respect of the injury to which I have referred. By order dated 23 May 2000, the application was dismissed. There was an appeal from that order of dismissal.

4 The appeal was upheld (2000 TASSC 143) and the order dismissing the appellant's application under s88(1) was quashed. At the hearing of the appeal counsel agreed that in the event of the appeal being upheld this Court should make the order that the Tribunal should have made. Accordingly, after judgment was handed down the appeal was relisted for further argument with respect to the order that should have been made in the Tribunal. Upon the resumption of the hearing there was agreement that the respondent's weekly payment should be reduced to $257.85. However, the parties were unable to agree the date upon which the order should be effective.

5 The Act, s88, provides:

"88 (1) A worker, an employer of a worker, or the licensed insurer of the employer may refer to the Tribunal for review a weekly payment being made to the worker.

(2) The Tribunal may, upon hearing an application to review a weekly payment, make a determination -

(b) increasing the payment, subject to the limitations prescribed by section 69."

6 On behalf of the appellant, Mr Dockray submitted that the order should be effective from 12 April 1999 being the date of Dr Ulman's certificate. His submission was that the Tribunal, and thus this Court, has jurisdiction to make the order effective as at the date of the referral, but conceded that until he received Dr Ulman's opinion he was unable to establish that the respondent was able to earn income in suitable employment during the period of incapacity. For the respondent, Mr Hilliard, submitted that the order should operate from today or at the earliest, from the date of the hearing before the Tribunal.

7 The Act, s88, confers, without temporal limit, the power to terminate, reduce or increase a weekly payment. The relevant general principle was expressed by Lawrence LJ in In re Keystone Knitting Mills' Trade Mark [1929] 1 Ch 92 at 105 when he said:

"It is an almost universal rule that the Court sits to determine the rights of parties as existing at the time of the institution of the legal proceedings, whatever form such proceeding may take. ...

If, as was at first contended by counsel for the appellants, the hearing of the action or matter in the Court of first instance were the crucial date, the strange result would follow that the rights of the litigants might depend entirely upon whether the party having the conduct of the proceeding were able and willing to prepare for the hearing with promptitude and upon whether (even if such party were expeditious in this respect) the business of the Court would permit of the case being heard before the expiration of the seven years' period. Thus an aggrieved person might be deprived of his right to have the register rectified through no fault of his own."

8 The above proposition was applied to the Workers' Compensation Act 1927, s9, by the Full Court of this Court in Australian Newsprint Mills Ltd v Williams [1979] Tas R 234. It was also applied by McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 194. As a matter of commonsense this general principle applies to referrals pursuant to the Act, s88. Nothing to the contrary is indicated by the terms of the legislation. Indeed, I understand that as a matter of course, Tribunal determinations in favour of the worker are routinely dated back to at least, the date of the referral, if not earlier. Mr Dockray referred to a number of early English workers compensation cases all of which support the proposition that there is jurisdiction to make an order terminating weekly payments effective as at the date of the application. See George Gibson & Co v Wishart [1915] AC 18; Francis Morton & Co Limited v Woodward [1902] 2 KB 276. Consistent with his duty as counsel, Mr Dockray also referred me to Commonwealth of Australia v SCIACCA (1990) 96 ALR 455. At first blush it might appear that in that case, Neaves J was of the view that the order of termination cannot be made to have effect retrospectively. However, upon careful reading it will be seen that his Honour's view was that any order terminating weekly payments should not be made to operate any earlier than the date of a review which initiated the proceedings, the result of which was the order which was under appeal. In my view there is nothing in that case to derogate from the general principle expounded in In re Keystone Knitting Mills' Trade Mark (supra).

9 There may be circumstances in which it would be unjust to make an order terminating weekly payments effective from the date of the referral to the Tribunal. Indeed, in this case, Mr Dockray conceded that the appellant did not have the requisite evidence to establish its case until the receipt of Dr Ulman's certificate a little more than four weeks after the referral had been made to the Tribunal and he conceded that thereby it would be unjust to order a reduction of payments earlier than the date of Dr Ulman's certificate.

10 There are no circumstances to support the proposition contended for by Mr Hilliard. In the Tribunal:

* the evidence of Dr Ulman was not countered by any medical evidence called on behalf of the respondent;

* there was surveillance evidence of the respondent loading and unloading firewood from a truck which was, not surprisingly, undisputed; and

* the respondent gave no evidence at all and thus did not seek to discharge the onus imposed on him by the Act, s69(4)(c) with respect to unsuccessful attempts by him to obtain other employment.

11 Although an order reducing the weekly payments to $257.85 effective from April 1999 will impose a financial burden upon the respondent, that burden is very largely of his own making. It would be unjust to make the respondent's licensed insurer, pay weekly payments for an incapacity that curial determination has found did not exist.

12 In lieu of the order of the Tribunal made on 23 May 2000 dismissing the appellant's application, it is ordered that the appellant's application be allowed, and that as from 12 April 1999 the weekly payment to the respondent be reduced to $257.85.