Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of tribunals, boards, commissioners etc - Tasmania - Whether there is a genuine dispute over liability - Appropriate test to ascertain same.

Edgell Birds-Eye v Costello [1995] TASSC 10; (1994) 4 Tas R 319; GIO Australia Ltd v Lovell [2000] TASSC 75; The State of Tasmania v Gulliver [2000] TASSC 24; Haas Investments Pty Ltd v Viney [2001] TASSC 147; State of South Australia v Wall (1980) 24 SASR 189, followed.

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

Judgment Number: [2002] TASSC 76

1 This is an appeal against a determination made by the learned Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal. The impugned order, made on 16 August 2002, was that there was no genuine dispute between the appellant and the respondent within the meaning of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A(2A) or (3). Upon receipt of a claim for compensation, the employer invoked the dispute mechanism provided by the Act, s81A(1) and referred the matter to the Tribunal.

2 The appellant complains that in the making of the order, the learned Chief Commissioner misdirected himself on a matter of law. The meaning of the expression "genuine dispute" in s81A is well settled in this State. The meaning of that expression in an equivalent legislative setting was expounded by Cox J of the South Australian Supreme Court in State of South Australia v Wall (1980) 24 SASR 189. His Honour's view of the meaning of the expression "genuine dispute" has since been adopted on many occasions by this Court. See, for example, Edgell Birds-Eye v Costello [1995] TASSC 10; (1994) 4 Tas R 319; GIO Australia Ltd v Lovell [2000] TASSC 75; The State of Tasmania v Gulliver [2000] TASSC 24 and Haas Investments Pty Ltd v Viney [2001] TASSC 147.

3 The effect of those decisions appears in this passage taken from the judgment of Cox J in State of South Australia v Wall at 194:

"In short, if an employer disputes his liability, it follows that, except in the unlikely event of the worker abandoning his claim, a dispute will necessarily exist. So far as the nature of the dispute itself is concerned, it seems to me to require no more than a challenge or contest to the assertion of liability that the worker has made under sub-s (1). Again, it must not be a frivolous dispute, or one made without adequate inquiry and consideration, or it will run the risk of not being considered by the Court to be genuine, but otherwise the section, in my opinion, does not look beyond the employer's declared attitude."

4 In this case, the respondent worker lodged a claim for compensation accompanied by a medical certificate. That material was before the Tribunal. The learned Chief Commissioner reviewed those documents and then said, at par12 of his reasons for judgment:

"I do not accept that there is any basis on the material before the Tribunal or on the submissions made by the employer, to justify the drawing of a reasonable inference [and I interpolate one that had been argued] that the certifying medical practitioner had some reservations concerning the material set out in the workers compensation medical certificate. The material available to the employer in considering this issue includes not only the worker's claim for compensation, the medical certificate which is uncontested as to the opinion on diagnosis and the causative link to the worker's employment duties, but also the admission of the clear notification and complaint made by the worker at or about the time he first suffered his condition attributing his work duties as the cause."

5 It is apparent from that passage that the learned Chief Commissioner embarked upon a consideration of the evidence that was before him at that preliminary stage and did not ask himself the correct legal question as to whether there was a genuine dispute or not. This is a little surprising because the learned Chief Commissioner did, in fact, refer to three of the authorities that I have cited, but having done so seemed to have somehow become side tracked into considering whether, viewed objectively, there was an arguable case on the material presented instead of considering whether the dispute was genuine in the sense explained by Cox J in the South Australian case. This is apparent from the concluding paragraph of the learned Chief Commissioner's reasons for judgment, which follows the paragraph I have just cited, in which he said:

"Accordingly I conclude that the employer's dispute of this claim is not genuine in that it has been unable to show any arguable issue either of fact or law in respect of the worker's claim for compensation." [Emphasis added.]

Quite clearly, in my respectful view, that was not the relevant issue.

6 Of course, in some cases it might appear that when viewed objectively, the evidence so clearly points to the conclusion that the disputation is totally unreasonable that the dispute can be categorised as not genuine. Mr Wood of counsel for the respondent, submitted to me that in this case, it was appropriate for the Tribunal to look at the evidence objectively and when that was done, the finding of fact that the dispute was not genuine was reasonably open. I do not accept that submission as correct.

7 According to the material before the Tribunal, the worker complained of some injury to his hands or fingers when using a sledge hammer and a dead blow hammer, mattock, and like implements for breaking rocks, I infer, on some kind of road work. The complaint was made after only 4 days of this work. By the time the respondent first saw a medical practitioner, he had been gone from his job with the appellant for nine days. Further, that first visit took place about a week after he started a new job, assuming that he did start a new job, as he told the appellant in accordance with his stated intention to do so. Further, no certificate followed the first visit to the medical practitioner. Then there was the examination that led to the issue of the certificate that was before the Tribunal, but this examination did not take place until more than a month after he had left the appellant's employ.

8 It is, as Mr Porter QC, counsel for the appellant, submitted, very difficult to discern from the medical certificate if there was a disease or injury and that itself, of course, leads to many genuine disputes because of the different conditions precedent to the establishment of liability. What the learned Chief Commissioner should have done after citing the authorities was simply ask whether the dispute was genuine in the sense expounded by Cox J in the South Australian case. Instead of that, as I say, the learned Chief Commissioner seemed to investigate the facts and reach some kind of factual conclusion on the very limited material that was before the Tribunal.

9 I am satisfied that error is made out and that the appeal should be allowed. The determination of the learned Chief Commissioner on 26 August 2002 will be quashed. I will hear counsel, but it seems to me that this is an appropriate case where I should make a further order that a genuine dispute does exist and make some consequential orders rather than just sending it back to the Tribunal.

10 [There followed agreement between counsel that the following order was appropriate in the circumstances.] There will be an order in lieu that there is a genuine dispute concerning the liability of the appellant to pay compensation to the respondent by way of weekly payments and/or cost of benefits under Div2, PtVI, and such weekly payments and/or cost of benefits not be paid by the appellant.

11 There will be a further order that the respondent pay the appellant's taxed costs of the appeal and there will be an order that the unsuccessful respondent be granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s9.