Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Claim and delay in making claim - Time for claim - Claim made after finding of genuine dispute but before determination of liability - Whether further or new claim - Whether deemed acceptance of claim because employer does not give notice of disputed liability therefor.

G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308, distinguished.

Workers Rehabilitation and Compensation Act 1988 (Tas), s81A.

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - Whether a failure to give adequate reasons for determination and to make material findings an error of law.

Attorney-General for Tasmania v Smith A87/1994; Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed.

Judgment Number: [2000] TASSC 144

1 The appellant, a university lecturer, sought compensation before the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") for incapacity due to a disease, namely a psychiatric illness, which arose out of and in the course of his employment and to which his employment contributed to a substantial degree. It was not seriously contested that he had suffered such a disease, that it had arisen as alleged and that his employment had contributed to it to a substantial degree. The respondent resisted liability on the basis that the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s25(1A)(c), namely that the disease arose substantially from reasonable administrative action taken in a reasonable manner by it as employer in connection with the appellant's employment. The Tribunal found this to be the case and dismissed the appellant's Reference.

2 The claim was initiated by the appellant on 19 September 1997 and was accompanied by a medical certificate from Dr R J Burgess, a psychiatrist, to the effect that the appellant had an adjustment disorder with depression which had been caused by work-related stress. He was certified unfit for work from 8 September to 30 September 1997. The respondent disputed liability pursuant to the Act, s81A, and referred the matter to the Tribunal. On 20 January 1998, the Tribunal determined that a genuine dispute existed with regard to liability to pay compensation by way of weekly payments and/or the cost of any benefits payable under Div 2, Pt VI and determined that in respect of the injury to the appellant worker, compensation and/or the cost of those benefits were not to be paid to him by the respondent employer. On 21 July 1998, Dr Nathan Serry, another psychiatrist, gave a certificate to the effect that the appellant was suffering from adjustment disorder with depressed mood and was incapacitated for work from 21 July 1998 to 21 November 1998. Subsequent certificates have been given by Dr Serry covering the period 21 November 1998 to March 1999. On 24 July 1998, the appellant lodged a Reference in the Tribunal pursuant to the Act, s42, seeking a determination as to his entitlement to compensation in respect of work-related stress for which he made a claim for compensation on or about 19 September 1997. In accordance with Practice Directions of the Tribunal, he attached (inter alia) copies of Dr Burgess' initial medical certificate of September 1997 and that of Dr Serry of 21 July 1998. The respondent, when the latter certificate was served upon it, did not seek to invoke the provisions of s81A. The appellant argues that by its failure to do so, the respondent is taken to have accepted liability in respect of the claim to which that certificate relates. He relies on the decision of the Full Court in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308. The ground is expressed in these terms:

"[The Tribunal] Erred in law in respect of Reference number 960/1998 in finding that service by the appellant worker of medical certificates from 21 July 1998 did not constitute claims for compensation to which Section 81 of the Act applied."

3 In G L & V N Barber Pty Ltd v Ryan (supra) the employer had accepted liability and, while certificates of incapacity were still extant, sought to terminate weekly payments to the worker pursuant to the provisions of the Act, s86(1)(c) and had then discontinued making those payments. The worker challenged the purported termination in the Tribunal and was successful. The Tribunal ordered the continuance of payments, but as the certificate covered only a period of time which ended some seven months earlier than the order, the employer quite legitimately made payments only to that date. The presentation of a further certificate after the Tribunal's ruling certifying incapacity from that earlier date was held by the Full Court to be a new claim which enabled the employer to challenge it under s81 ff, notwithstanding its earlier acceptance of liability. The employer's failure to do so in accordance with those sections in the time allowed thereby, meant, however, that it was taken to have accepted liability for the new claim. The case is not authority for the proposition that wherever there is a gap in the continuity of medical certificates of incapacity, presentation of a further certificate constitutes the making of a fresh claim attracting the provision of s81 ff. It asserts that a claim for compensation to which those provisions apply is not confined to the initial claim. Specifically it will include a case where liability has been found or admitted and there is a claim after a substantial gap in certification and also one where a further claim is made after the lawful termination of payments pursuant to s86 (at 318, par20). At 320, par22, I acknowledged that fresh claims for weekly payments where an initial claim for benefits only has been made (or vice versa) would also be included. More recently, in State of Tasmania v Cook [2000] TASSC 82, Slicer J has held that where the claim made by the worker differed from the original claim in two significant respects, namely that for the first time a claim for compensation was dependent, at least in part, on a psychological condition said to have arisen as a result of the initial event causing physical injury and where the claim now sought weekly payments based on total incapacity rather than partial, as previously made, it was a new claim to which s81 ff applied.

4 In the present case, the circumstances are quite different. The appellant sought compensation for a specific disease arising from work-related stress. The respondent disputed liability and the Tribunal ordered that no compensation be paid in respect of the claim because a genuine dispute existed. It then became necessary for the appellant to take the initiative under s42 by referring the question of his entitlement to the Tribunal. Before the Tribunal was even seized of the Reference but admittedly after a gap in the certification of incapacity, a further certificate was presented. It alleged the same disease arising out of the same set of circumstances and causing the same result, that is, total incapacity. In my view, what was referred to the Tribunal in the Reference dated 24 July 1998 was not only the initial claim which had still not been adjudicated, but the appellant's continued entitlement to compensation in consequence of the certificate of 21 July 1998 and of each successive certificate until the Reference was determined. It would be absurd for the Tribunal on such a Reference to determine on the merits that the worker had failed to prove an entitlement to compensation, but to hold that the employer was nevertheless liable in respect of the same condition arising out of the same circumstances from the time of service of a later certificate because the provisions of s81 ff had not been invoked at that time. I do not accept that Parliament could have intended such a result. In my view this ground is not made out.

5 I turn now to the next ground of appeal which is in these terms:

"[The Tribunal] Erred in law in failing to determine and/or give adequate reasons and/or make sufficient findings in respect of essential facts in respect of Reference number 960/1998 as to whether the respondent employer had a defence to the appellant's claim for compensation pursuant to Section 25 (1A) of the Act on the basis that the work load allocated to the appellant worker at the respondent's Hobart Campus was greater than that to which he agreed to before taking irrevocable steps to transfer from the respondent's Launceston Campus to its Hobart Campus."

The appellant is a philosopher. He has had previous psychiatric problems, but it is unnecessary to go into detail about them. In 1995, he was employed by the respondent in Launceston on a three year contract. He was employed on a Level B 0.5 lectureship. In 1996 his workload was two lectures and six tutorials for one semester of the year. He was thus free in the second semester to pursue research. There was an understanding that he would undertake some research and would perform some minor administrative roles. He regarded this as an ideal situation. In 1996, there was considerable restructuring within the University and the head of the Philosophy Department, Professor Garfield, had instructions from the Executive Dean to transfer 0.5 time of teaching from Launceston to Hobart to equalise staff:student ratios. On 15 November 1996, Professor Garfield met the appellant at the Launceston Campus and encouraged him to transfer to Hobart, retaining his Level B 0.5 status. The appellant claimed that agreement was reached at that meeting that the appellant's teaching load would be "a few tutorials" in first semester and lectures and tutorials (two or three) in Contemporary Philosophy in second semester. The possibility was also discussed that he should share with the Professor the supervision of a PhD candidate named Christine Townley. This workload was a little greater than his Launceston workload, but he was willing to accept it as there were other advantages in the move.

6 Not long afterwards, he claimed, Professor Garfield advised him that he would be required to undertake a heavier workload. It consisted of four first year tutorials in both the first and second semesters, two lectures and two tutorials in Contemporary Philosophy in the second semester, the possible supervision of Ms Townley and one unit in each semester of Distance Education which involved 30 - 40 enrolments by correspondence. He claimed this was nowhere near the 0.5 position he was to hold and that it was in excess of a full time position. He telephoned the Professor and refused to do the workload, but after heated discussion, the Professor agreed to drop the correspondence units, but substituted a further tutorial in first semester. He reluctantly agreed because he had already committed himself to transferring to Hobart, had given notice terminating his accommodation in Launceston and had paid a deposit on accommodation in Hobart. It was almost Christmas-time and he was on his way home to Melbourne. He anticipated that he would be able to persuade the Professor that what was being asked of him was unreasonable. When the first semester of 1997 commenced, his workload remained the same despite his attempts to ensure a reduction of it and he was given supervision of three PhD candidates and one Honours student. During that semester he was coping with his workload, but his relationship with Professor Garfield was deteriorating. In May 1997, there was conflict with another member of the Philosophy Department senior to him, Dr Sleinis, over the method of marking certain papers which he said imposed unnecessary extra time and effort, and the Professor took the part of Dr Sleinis. There followed an exchange of acrimonious e-mail correspondence after which Professor Garfield offered a reduction of his workload by dispensing with his obligation to take the two lectures and two tutorials in Contemporary Philosophy in second semester. By this time he was consulting Dr Burgess because of his mental state. On 23 June 1997, he claimed, Professor Garfield advised him that his position the following academic year would be reclassified to Level A and would be an Environmental Ethics position. On 7 July 1997, he wrote a letter of complaint to the Vice-Chancellor. Among his grievances were the claim as to the teaching load promised in Launceston which he expressed thus:

"Some time later that day we met in my room and discussed courses and teaching load. We agreed quite quickly on the following: were I to go to Hobart I would lecture and tutor a semester unit of Contemporary Philosophy (2 lectures and 2 or 3 tutorials) in second semester and 'do a few tutorials' in another subject in the first semester. I was not entirely happy with this because it increased my teaching workload slightly and occupied 2 semesters but, in the circumstances, I agreed to it."

"Some weeks later, when I had already made irreversible arrangements to move to Hobart, the 1997 teaching loads were made known. Mine bore nearly no relation to that which had been agreed upon. It now consisted of lecturing and tutoring in Contemporary Philosophy (2 lectures + 2 tutorials in second semester), 4 First year tutorials per week for 2 semesters, 2 units of distance education over 2 semesters and some post-graduate supervision."

The reclassification from B to A Level was also raised as a complaint.

7 In his written response to the letter to the Vice-Chancellor, Professor Garfield claimed that the load the appellant was assigned upon arrival "was precisely what we had agreed upon prior to his transfer, and on the basis of which he had agreed to move to Hobart". He also claimed that the appellant had, "if anything, a lighter load, figured against his fractional appointment, than other members of the department". He also defended his advice concerning reclassification as simply a reasonable projection of the department's profile the following year gleaned from discussions had by the Executive Committee on 20 June 1997.

8 By way of reply to this missive, the appellant noted in a letter to the Vice-Chancellor:

"Professor Garfield states that 'the load he [Pataki] was assigned upon arrival was precisely that we had agreed upon prior to his transfer, and on the basis of which he agreed to move to Hobart'. This is an extraordinarily disingenuous statement. As I explained in my earlier memo Professor Garfield and I had come to an agreement which he than reneged on shortly before my departure and at a time when my departure was irreversible. I certainly never agreed to the load I started with in Hobart, though I bore it till May. I contested the workload from day one. The whole history of this sorry matter shows up the absurdity of Professor Garfield's claim. Why does Professor Garfield not even mention the workload agreement on the basis of which I agreed to transfer to Hobart?"

9 Dr Serry, in a report tendered in evidence, said in respect of the incident or incidents which contributed to his disease:

"... I would restate that his sense of having been deceived by Prof Garfield with regard to the undertakings that he believed were made to him would have been the most marked of these factors. Again as to the absolute truth of what transpired between Dr Pataki and Prof Garfield I can make no comment other than to say Dr Pataki's experiences have resulted in the symptoms of depression and anxiety that he described."

10 Dr Burgess, in his report which was also tendered in evidence, said of the appellant:

"He felt deceived and that the work load was nothing like what he was promised. Basically his position is documented in the letter that he has written to Professor McNichol, the Vice Chancellor. He said that he was doing a part-time job in Launceston which was an 0.5 position and he had plenty of time to himself. He had roughly the same number of hours here in Hobart but triple the amount of work as in Launceston. He said that he had a sense of time getting short and that he was getting older. There was also the issue of the position being reclassified from a B position to an A position."

In answer to the question as to what work incident or incidents contribute to the disease to a substantial degree, he said:

"... the incident or incidents that contributed were as outlined above. Basically he felt that he had been given certain undertakings while he was still in Launceston about what the position in Hobart would entail and that these undertakings had not been adhered to. He was also angry about the reclassification of his position and the other matters that he takes up in the letter which you have enclosed with the correspondence" [ie, the letter to the Vice-Chancellor of the 7 July 1997].

11 It is apparent from this recitation of the factual claims and the views of the two psychiatrists called on the Reference that a crucial issue was whether Professor Garfield had imposed upon the appellant a workload significantly different from that agreed to in Launceston and, if so, whether his conduct in doing so could be said to be reasonable administrative action taken in a reasonable manner by the Professor. If any duplicity were established by Professor Garfield in inducing the appellant to come to Hobart on terms which he repudiated after the appellant had made irreversible commitments to the move, that would be a very relevant consideration. Some aspects of duplicity were the subject of evidence before the Tribunal. It is unnecessary to deal with it in detail, but in substance the appellant's contention was that Professor Garfield had not only reneged on the arrangement about the workload, but that he had enticed him to Hobart with the promise of an extension of his contract at the end of 1997 when it was due to expire. The learned Commissioner who constituted the Tribunal acknowledged that Dr Serry had said in evidence that the appellant's beliefs of having been deceived by Professor Garfield with respect to job undertakings were the most marked factor which contributed to the disease. He directed himself as follows:

"A considerable amount of evidence was given in the Tribunal in relation to this matter, and it revolved around the questions of what the worker alleged occurred to cause his stress and whether the employer could rely upon the defences set out in Section 25(1A) of the Act in that it claimed that everything it had done with the worker was reasonable. Clearly administrative action in this sense is not every instruction and action taken by the employer, either expressed or implied, relating to the worker's duties. As was discussed in Abrahams v St Virgil's College 53/1998, when citing from Workcover Corporation of South Australia v Summers (1995) 65 SASR 243, what 'administrative action' is is probably intended to apply to decisions or actions of the employer which are in some way related to the workings or functioning of the workplace. These are confined to each peculiar set of facts. I consider that that sort of reasoning would be applicable in this case, and that it would be permissible to look at the functioning of the workplace as a whole as well as the actual tasks performed by the worker. I say both of those things because it is clear that the worker's complaints have their genesis in the original meeting of 15 November 1996 between himself and Professor Garfield in Launceston. That meeting could certainly be said to have been concerning the functioning of the workplace, although it is clear that the subsequent transfer to Hobart and the complaints in relation to workload would relate to the actual tasks performed by the worker."

12 The learned Commissioner then made a series of findings. He referred to the meeting of 15 November, but made a limited finding as to what occurred there, recording it in these terms:

"3 That at that meeting the two of them discussed the possibility of the worker moving to Hobart during the currency of his contract, commencing at the beginning of 1997.

4 That after that meeting it was agreed that the worker would move to Hobart and commence teaching in the Hobart campus, but with a different workload.

5 That that workload would consist of teaching in both semesters of the year, initially teaching four first year tutorials in both semesters as well as two lectures and two tutorials in Comparative [sic] Philosophy in the second semester, supervising PhD students and honour students, and some Distance Education work.

6 That after the worker moved to Hobart at the beginning of 1997 to commence his duties there was also added one Ethics tutorial in the first semester, but the supervision of correspondence course students was dropped and, at the worker's request, the four first year tutorials were spread to six to take account of his inability to hold large tutorials because of his disability."

He made other findings in respect of later events, but I confine myself to the findings relevant to ground 3. At the conclusion of those findings, he then addressed some specific issues, saying:

"Within those set of findings lie the very contentious issues that have been the subject of the prolonged and protracted hearing. I have considered all of the matters that have arisen in the evidence in relation to those issues and find as follows:-

There are certainly two interpretations that can be placed upon this meeting, but in order to make a finding as to which interpretation should be favoured, I think it is necessary to consider the background in which the meeting took place. It seemed to be agreed by all parties that at that time University funding was under threat as a result of the findings of the Vanstone Report. It is also clear, and I so find, that Professor Garfield was someone who was interested in retaining an active Philosophy Department that would be demonstrably an efficient and cost effective part of University life. Doubtless Professor Garfield had in mind to prevent, or at least forestall, the likelihood of any major funding cuts in his area, and to do so he would certainly have to demonstrate that his Department was an attractive proposition. The worker in this case is a philosopher of some note and clearly would be an attractive proposition for the team in Hobart. I see nothing improper in that and certainly nothing improper in Professor Garfield suggesting to the worker that he move to Hobart, as it might advance his career. Whilst he and the worker might have differed over the question of whether or not that would advance his career, the fact remained that there were more students enrolled in Hobart, although the exact number of post graduate and honour students was unknown at that time. In so saying I do accept that the worker could have communicated with his colleagues around the world using e-mail or other types of facilities in Launceston or in Hobart.

However there were more philosophers in Hobart, and I do not consider that I could draw the conclusion that the meeting that took place on 15 November 1996 was anything more than an honest attempt by Professor Garfield to solve a problem that had been placed upon him by the Executive Dean, and that was to ensure that another 0.5 position was lost from Launceston and gained by Hobart. If he could persuade the worker to be that 0.5 position then much [sic] the better, and I think he was quite open and frank about that, but was more cautious and less candid about how he set out to achieve it. However I think, and I have come to the conclusion, that his actions were reasonable in the circumstances and in so saying I am not satisfied that Professor Garfield ever promised the worker that his workload would stay exactly the same as it had been in Launceston. Clearly Professor Garfield was used to different types of workloads and what eventuated was what, after all, was agreed between the parties. I certainly think, and I so find, that Professor Garfield encouraged the worker to consider moving to Hobart as a career move, but I find nothing improper in that and I do not think that anything by way of improper inducement was ever made to the worker at that meeting. I certainly do not find that any guarantees of continued employment past 1997 were ever made by Pprofessor Garfield. Indeed he could not have possibly done so. He was not in a position to do so.

What happened at that meeting, in my view, would constitute reasonable action taken by the employer in a reasonable manner and would fall within paragraph 25(1A)(c)."

13 With respect, the crucial issue was not addressed. The findings about the absence of any guarantees of continued employment past 1997 resolved some matters, but no finding was made as to what had been agreed between the parties as to the workload and how that differed from the workload later imposed and reluctantly accepted by the appellant after he had committed himself to the move. Professor Garfield no doubt was used to different workloads and that enjoyed by the appellant in Launceston had undoubtedly been a very favourable one. The question was not confined to whether the workload later imposed was a reasonable one on any objective view and whether its imposition was reasonable administrative action, but included whether the Professor had induced the appellant to commit himself to a move to Hobart by promising a modest workload of the kind claimed by the appellant only to renege on that arrangement by demanding a much more strenuous load and, if so, whether this could be said to be reasonable administrative action taken in a reasonable manner within the meaning of the Act, s25(1A)(c). This issue was not resolved. The learned Commissioner said he was not satisfied that Professor Garfield ever promised the appellant that his workload would stay exactly the same as it had been in Launceston. Though expressed in negative terms, this may have been intended to be a finding that the Professor never promised that the workload would remain the same, but the appellant did not claim that it was to remain the same. In any event, the Professor gave evidence that a lesser workload than that ultimately imposed had been agreed. He said:

"... we went back to Doctor Pataki's office and talked about several possible work load assignments in Hobart. And we settled fairly quickly on a workload that would involve co-ordinating, lecturing and tutoring Contemporary Philosophy in the second semester, and taking approximately four Philosophy 1 tutorials for the year."

This was not dissimilar to the appellant's evidence as to what was agreed. Even if the Tribunal found that the Professor had not been consciously deceitful as the appellant contended, it was still required to consider whether his conduct in imposing a different workload was, having regard to the extent of the difference found by it, reasonable administrative action taken in a reasonable manner. This was another aspect of the issue which was not resolved.

14 In Attorney-General for Tasmania v Smith A87/1994, Zeeman J said at 8 - 9:

"The appellant has raised as a ground of appeal what is said to be an error of law on the part of the Commissioner in failing to give any sufficient or adequate reasons. As Underwood J has recently explained in Australian Securities Commission v Schreuder A79/1994, it is 'an incident of judicial duty to give adequate reasons for judgment and that a failure to do so constitutes an error of law.' His Honour was speaking of the common law duty. The Act, s61(3) imposes an express obligation on the Commissioner to provide a written statement of his reasons for making a determination which is given effect to by an order in respect of a claim for compensation. The principles expressed by Underwood J are of equal application to the statutory duty imposed by s61(3). An application of those principles required that the Commissioner:

1 make findings with respect to the essential facts relied upon by the parties relevant to the references before him;

2 where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;

3 where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;

4 expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court."

See also Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Gulf Industries Pty Ltd v Barnett (1996) 6 Tas R 142; McCain Foods (Aust) Pty Ltd v Williams 25/1997; Roberts Ltd v Barker 137/1998; Barnett v Gulf Industries Pty Ltd [1999] TASSC 4. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Kirby P said at 258:

"This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law. That does not exempt the judge from logical and reasoned decisions on questions of fact duly justified where they have been contested. On the contrary, because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished."

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done."

15 I regard the issue of Professor Garfield's alleged conduct in imposing a workload significantly greater than that agreed upon at the November meeting in Launceston as what Zeeman J in Attorney-General for Tasmania v Smith (supra) at 8 called an "essential fact" relied upon by the appellant relevant to the Reference before the Tribunal because according to Dr Serry, the appellant's belief of having been deceived by his departmental head in respect of his job undertakings was "the most marked factor which contributed to the disease". Dr Burgess' view was similar. The failure to make a specific finding about it is not cured by a generalised statement that what happened at the meeting of 15 November 1996 fell within the defensive umbrella of s25(1A)(c). In these circumstances, although other conduct which played a part in the development of the disease, was found to be entitled to that defence, the ultimate conclusion that the appellant had failed to establish his entitlement to compensation under the Act cannot be sustained. Although other grounds of appeal were argued, it is unnecessary to resolve them as the appellant's success on this ground requires that the determination be quashed and the matter remitted to the Tribunal for re-hearing by another Commissioner.