Supreme Court of SA|1997-05-28|Before: Doyle CJ, Lander JJ

For the reasons already given the application of 10 October 1995 for a review was an inappropriate procedure. The Act precludes a review of the making of an assessment. The Review Officer had no jurisdiction to entertain that application.

Between 10 October 1995 and 3 June 1996 the worker and the Corporation engaged in negotiations in respect of these matters and on 5 December 1995 H I H Winterthur, the Corporation's agent, wrote to the appellant: "... you are no longer in receipt of weekly payments & H I H Winterthur have ceased any further Loss of Earning Capacity assessments, therefore I am unsure as to what there is to discuss." 71. On 27 December 1995 the appellant made a further application for review of the decision that 'H I H Winterthur have ceased to make any further LOEC assessments.'

On 4 June 1996 the Review Officer determined "to vary the medical authority and to quash the need for a signed statement". By that she decided in favour of the appellant on his application for a review of the reasonableness of the Corporation's requirements under s42B(1), i.e. she determined that the Corporation's requirements were unreasonable and should be quashed.

On 11 June 1996 she ruled: "pursuant to section 42B(5), and taking into account all factors identified in section 42B(6), that the corporation/H I H Winterthur immediately make payments to the worker for payments not paid from 18 May 1995 due to adjournments." 75. I think the Review Officer had power under s42B(5) to order the Corporation to make payments under s42B(5). At the time that the applications of 10 October 1995 and 27 December 1995 were made the application of 10 April 1995 for the review of the reasonableness of the Corporation's requirements had not been heard. The reasons for the failure to determine that application until 4 June 1996 are not clear. The Review Officer had an obligation to hear that matter with as much expedition as was reasonably practicable. However as the review had not been completed the appellant was entitled to apply, pursuant to s42B(5), to the Review Officer for a payment during the period of the adjournment. I think the Review Officer probably needed to identify with more precision the payments to which she was referring, but that is a matter of form, not substance. For the reasons already given the Corporation had an obligation independent of s42B(5) to make an assessment to 6 October 1995 because it was not until then that it determined not to pay compensation in respect of the period of default. Her order therefore can only apply to the period from that date until 4 June 1996.

The Review Officer further determined, relying on the decision of Vlouhakis v WorkCover Corporation (supra) that she had no jurisdiction to compel the Corporation to make its next interim assessment under s42A. In that respect she was, in my opinion, correct. However she decided that by not making an assessment the Corporation had in fact made a nil assessment and that the quantum of that assessment, i.e. nil, was subject to review under s42A(9)(a). I disagree with that decision. The concept which she introduced is fiction, which is in any event unnecessary in the scheme of the Act.

In making that assessment she determined that the Corporation was liable to pay weekly payments from 18 May 1995 to 2 June 1996. I disagree with that determination. The Corporation could never have been liable to make weekly payments for this compensable disability in respect of that period. The worker had ceased to have any entitlement to weekly payments when the first interim assessment was made. There was no liability upon the Corporation to make weekly payments in respect of this compensable disability [s42A(6)].

The Review Officer also determined that the Corporation was liable to make weekly payments to the appellant in relation to his stress claim over the same period. It was argued during the appeal that the appellant would be entitled to weekly payments in respect of that stress claim even though the appellant had received a s42A assessment of total incapacity in respect of the injury of 30 June 1990. I have reached no conclusion on that submission. This Court is in no position to offer any opinion on that matter because there is no evidence before this Court, one way or the other, whether that stress claim is a compensable disability. It is not possible therefore to reach a conclusion as to whether the stress claim gives rise to any entitlement to weekly payments. In any event the matter is not before this Court in this appeal.

There were two valid orders made by the Review Officer. The first was in relation to the reasonableness of the Corporation's requirements which she decided adversely to the Corporation. The second was the imprecise but valid order that she made that the Corporation make payments under s42B(5) during the period of the adjournment.

The Appeal To The Workers Compensation Appeal Tribunal

The Corporation appealed from the decision of the Review Officer to the Workers Compensation Appeal Tribunal. Deputy President Parsons allowed the appeal. She found correctly, in my opinion, that the applications for review of 10 October 1995 and 27 December 1995 were misconceived. I need say no more about those reviews. She found again correctly, in my opinion, that the only reviewable decision before the Review Officer was that relating to the original request under s42B(1). In respect of that decision she disagreed with the Review Officer. She said: "The basis upon which the Review Officer decided that the information was unreasonable was not warranted. Although there may have been medical certificates and reports on the Corporation's file it was appropriate that the Corporation have current details as to the worker's medical condition at the time specifically in contemplation of the making of a LOEC assessment. Moreover it was not unreasonable that the worker provide a specific declaration as to his earnings for the preceding twelve months. He was the only person in possession of those details. The information sought was relevant to the amount of any LOEC assessment and could reasonably have influenced a decision whether the assessment should be made on a final or interim basis." 80. She also decided that s42B(5) had no application to workers who had previously received an interim assessment. She was of the opinion that 'payments' in s42B(5) meant weekly payments and were therefore only capable of being ordered in favour of a person who had not ceased to be entitled to weekly payments, i.e. a worker who had not previously received an assessment under s42A.

She therefore ordered: "I therefore uphold the appeal, overturn the Review Officer's decision on the first application for review and confirm the Corporation's request for the information of April 1995. I also overturn the Review Officer's decision on that application for review that the worker is entitled to weekly payments for the period of the adjournment from May 1995 to June 1996. The worker's remedy in relation to the unpaid LOEC period remains elsewhere." 82. It is from that decision which the appellant appeals, his appeal being limited to questions of law.

The decision of the learned Deputy President allowing the appeal to set aside the order for payments to the appellant during the period 18 May 1995 to 3 June 1996 is clearly a matter of law. That is so because it involves a question of the construction of the Act. I respectfully disagree, for the reasons already given, with the construction put upon that section by the learned Deputy President. In my opinion the Review Officer did have power to order the Corporation to make payments to the appellant, at least during the period 7 October 1995 to 3 June 1996. For the reasons already given the Corporation has an obligation to make an assessment for the period 18 May 1995 to 6 October 1996 because it was not until 6 October 1995 that the Corporation determined not to pay compensation in the period of default. The different liabilities for the different periods are important for reasons I will mention later. It follows that the appeal to this Court ought to be allowed at least to that extent.

The other matter decided by the learned Deputy President of which the appellant complains, is the decision that the requirements of the Corporation were reasonable.

The question whether a matter is one of law or one of fact can often be difficult to determine. In this case the construction of s42B(1) and the conclusion that the Corporation's requirements must be reasonable is a matter of law. But the appellant does not complain about the learned Deputy President's construction of the section. This ground of appeal goes to whether the facts as found disclose that the requirements are reasonable. It was not a question of whether the Corporation was entitled to require the appellant to submit to a medical examination or provide information. The question for determination was whether the requirements imposed by the Corporation were reasonable.

However, it is not necessary to determine whether that gives rise to a question of law or fact because in the end, from the parties point of view in this appeal it does not matter. That is because I agree, with respect, with the decision of the learned Deputy President on this matter. She found the Review Officer's determination that the requirements sought were unreasonable to be wrong. The information sought was directly relevant to an assessment of loss of earning capacity under s42A.

The Review Officer found that the Corporation was provided with other information from the appellant and from other sources which ought to have been sufficient to satisfy the Corporation. With respect to the Review Officer that is not to the point. The Corporation is entitled to obtain information from any source who will co-operate with it in providing information. However the fact that the Corporation might obtain information from an independent source does not disentitle the Corporation from exercising its rights under s42B(1). Indeed in most cases the Corporation will have received medical reports from medical practitioners who have either treated the worker or have provided reports on behalf of the worker. The receipt of those reports by the Corporation could not be said to disentitle the Corporation from stipulating that a worker submit to an examination by another medical expert nominated by the Corporation [s42B(1)(a)].

So also the Corporation would not necessarily be acting outside [s42B(1)(b)] if it required a worker to submit information relating to the worker's earning capacity when that information was otherwise available to the Corporation. It would not necessarily be unreasonable for the Corporation to use the section to have a worker effectively verify information.

In the circumstances of this case I agree with the learned Deputy President that the requirements of the Corporation were not unreasonable. I would therefore dismiss that ground of appeal.

In these circumstances the Court ought to allow the appeal and make the order in the nature of mandamus to the extent mentioned.

That will mean, in effect, that the appellant will be entitled to the payments over the whole of the period from 18 May 1995 to 3 June 1996. However in respect of the period between 7 October 1995 and 3 June 1996 the Corporation has a right, in the exercise of its discretion and, subject to any regulations, to recover the amount of the assessment from the appellant as a debt or to set off the amount of the assessment against any liabilities of the Corporation to make payments under the Act. That is a matter for the Corporation.

I propose the following orders. (1) Appeal allowed.

The order of the Workers Compensation Appeal Tribunal allowing the appeal from the Review Officer setting aside an order that the Corporation make payments to the appellant pursuant to s42B(5) be set aside.

The matter to be remitted to the Review Officer for the assessment of the payments for the period 7 October 1995 to 3 June 1996.

This Court orders, upon the application of the worker, that the Corporation make an interim assessment of the appellant's loss of earning capacity for the period 18 May 1995 to 6 October 1995.

Workers Rehabilitation and Compensation Act 1986

Motor Vehicles Act 1959

Workers Rehabilitation and Compensation Act 1986

ROBERT HOWARD HILL v WORKERS REHABILITATION & COMPENSATION CORPORATION No. SCGRG-97-12 Judgment No. 6178 Number of pages - 15 Workers' compensation [1997] SASC 6178 (28 May 1997)

Section 42B(1), in my opinion, is no different to s127 of the Motor Vehicles Act which allows for a person against whom a claim is made for bodily injury, arising out of the use of a motor vehicle, to require the person making the claim to submit himself or herself for examination by a medical practitioner. In Wilson v Cutovic (1979) 23 SASR 77 a question was asked of this Court whether or not s127 of the Motor Vehicles Act required that a request for a submission for examination be in the circumstances of the case a reasonable request. In answer to that question King CJ said this: "The answer to this question is to be found in a passage in the judgment of Earl Loreburn L.C. in Morgan v William Dixon Ltd [1912] AC 74 at 78/79:

ROBERT HOWARD HILL v WORKERS REHABILITATION & COMPENSATION CORPORATION No. SCGRG-97-12 Judgment No. 6178 Number of pages - 15 Workers' compensation [1997] SASC 6178

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ROBERT HOWARD HILL v WORKERS REHABILITATION & COMPENSATION CORPORATION No. SCGRG-97-12 Judgment No. 6178 Number of pages - 15 Workers' compensation [1997] SASC 6178 (28 May 1997)