Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - Claim for compensation - Medical certificate not amounting to fresh claim.

Workers Rehabilitation and Compensation Act 1998 (Tas), s81A.

Pataki v University of Tasmania [2000] TASSC 144, G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308, State of Tasmania v Cook [2000] TASSC 82, Swan v Miller [2001] TASSC 15, followed.

Judgment Number: [2001] TASSC 62

1 This is an appeal against a determination of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") that the respondent worker's presentation of a medical certificate to the appellant, which described the respondent's medical condition in different terms than those used in previous medical certificates, did not constitute a fresh claim for compensation for the purposes of the Workers Rehabilitation and Compensation Act 1998 ("the Act"), s81A.

2 The following passage from the reasons for determination of the learned Commissioner who constituted the Tribunal encapsulates the relevant facts:

"2 On 21 December 1999 the worker made a claim for compensation upon the employer. Her Worker's Report stated that she was suffering from 'anxiety - depression'. The initial workers compensation medical certificate diagnosed her condition as 'depression'. The claim was accepted by the employer. Thereafter, for the following 9 to 10 months the worker provided the employer with ongoing medical certificates indicating an ongoing and uninterrupted incapacity for work. Over this lengthy period different practitioners provided medical certificates and they reveal different descriptions of the worker's condition. As I have said, the initial diagnosis was 'depression'. That diagnosis was made by Dr K Emanuel. The following two certificates were provided by a Dr Robert White. He diagnosed 'adjustment disorder with depression and anxiety'. Thereafter, Dr Ross Atkinson diagnosed '1. Anxiety state. 2. Major depression'. The next four certificates were provided by Dr A Kaczmarski. In each instance, the diagnosis is described as 'workplace stress'. That same diagnosis is adopted by the next examining practitioner, namely Dr M Welch. The penultimate certificate is provided by psychiatrist Dr E Jensen. Her diagnosis reverts to 'anxiety, depression'. The final certificate is again provided by Dr Welch. It is dated 4 October 2000. The section of that certificate making provision for 'medical diagnosis' has been left blank. The section providing for 'presenting symptoms' is completed with the words 'post traumatic stress, depression'. I infer that Dr Welch intended this phrase to indicate the worker's diagnosis and was not intended to be a description of the worker's symptoms. The employer's receipt of that certificate has been the catalyst for this reference."

3 Ordinarily, once a claim for compensation has been made, a worker's presentation of a further medical certificate in relation to that claim does not amount to a fresh claim for compensation for the purposes of the Act, s81A. In Pataki v University of Tasmania [2000] TASSC 144, Cox CJ referred to his earlier decision in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308 and said, in canvassing the circumstances in which the presentation of a further medical certificate will constitute a fresh claim for compensation:

"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 considering whether the medical certificate delivered by the respondent dated 4 October 2000 constituted a fresh claim for compensation, the learned Commissioner said, after referring to the above passage:

"7 In my view, the above comments of the learned Chief Justice make it clear that two ingredients are required for a fresh claim to arise within the terms of Cook (supra). Firstly, the fresh claim needs to be at least partly dependent on a psychological condition related to the physical injury arising from the initial event and secondly, the fresh claim needs to seek weekly payments based upon total and not partial incapacity. Upon the facts of this matter, neither of these ingredients is present. Even if the principle of Cook (supra) is extended to include those circumstances where the fresh claim is partly dependent on an additional and previously undisclosed psychological disorder, it nevertheless remains the case that there has not been an increase in the level of the worker's incapacity. For these reasons, it is my opinion that the employer's receipt of Dr Welch's certificate dated 4 October 2000 did not constitute a fresh claim for compensation within the meaning of s8IA, either within the principle of Cook (supra) or indeed at all."

5 The learned Commissioner approached the question of whether the certificate constituted a new claim on the basis that "two ingredients are required for a fresh claim to arise within the terms of Cook". Having identified those ingredients and found that they were not established in this case, the learned Commissioner concluded that there was no new claim. In my respectful view, his formulation of the question for determination in terms of the need for two ingredients to be established was an error in law. The Chief Justice's summation of the decision in Cook, which was referred to by the learned Commissioner, is no more than a narration of the matters which satisfied Slicer J that a fresh claim had been made in that case. That narration does not involve an assertion that, as a matter of law, there will only be a fresh claim if the new certificate differs from the claim previously made in two respects. The issue for determination is whether the new certificate substantially changes the nature of the worker's claim. Whilst the number of differences may be relevant, it is not decisive of that issue.

6 In Cook, Slicer J, at par23, held that the second certificate constituted a fresh claim as its effect was "to substantially change the nature of the claim". In Swan v Miller [2001] TASSC 15, Blow J formulated the question for his determination in terms of whether the new certificate asserted an entitlement to compensation on a substantially new basis. His Honour said:

"11 It is not uncommon for physically incapacitated workers to develop psychological disorders which in themselves become incapacitating, and sometimes eventually the sole reason for a worker's incapacity. When a medical certificate shows the original physical condition and a new psychological condition as concurrent diagnoses, the employer will only be able to terminate or reduce the weekly payments by proceeding under s86 or s88: Tubemakers of Australia Ltd v Kurz 4/1998 Crawford J; State of Tasmania v Cook (supra) at pars16 - 18. In that situation the medical certificate does not amount to a 'claim for compensation' for the purposes of s81, and thus cannot be referred to the Tribunal under s81A. The situation in State of Tasmania v Cook was different. Earlier medical certificates had related to a back condition, but a certificate was submitted stating provisional diagnoses as 'Acute adjustment disorder. Work related stress "depression" plus symptoms as per previous certificates'. It was open to the Tribunal on the facts of that case to conclude that the worker was claiming weekly payments on a substantially new basis, and that the certificate therefore constituted a 'claim for compensation' within the meaning of ss81 and 81A. Whether the terms of a medical certificate are such that, when submitted to the employer or insurer, it amounts to a new claim, or whether its terms are sufficiently similar to those of previous certificates for no new claim to arise, involves a question of degree. The result that is thus produced by the wording of the Act is most unsatisfactory, since from time to time medical certificates hastily scribbled by busy general practitioners will need to be scrutinised at great length and at great expense by lawyers, commissioners and judges, all of them looking for matters of significance much as witchdoctors might do when scrutinising the entrails of deceased poultry.

12 However, the question of the status of the certificate of 31 July 2000 in this case is not one of great difficulty. It referred only obliquely to psychological matters, and on any view did not elevate the significance of any psychological condition any higher than that referred to in the certificate considered by Crawford J in Tubemakers. It follows that the submission of the certificate of 31 July 2000 did not assert an entitlement to compensation on a substantially new basis, did not amount to a 'claim for compensation' for the purposes of ss81 and 81A, and did not result in the Tribunal having any jurisdiction to make the order for the payment of compensation."

7 Whilst the learned Commissioner misdirected himself on the legal test to apply, I should not allow this appeal unless some substantial miscarriage has been occasioned by that misdirection; Supreme Court Rules, r693(6). The appellant will not have so suffered if, upon an application of the facts to the correct legal test, the result is the same, that is, the respondent's delivery of the certificate did not amount to a fresh claim for compensation. I turn to that issue.

8 The respondent initiated her claim for compensation by lodging a claim form on 21 December 1999. In that form she described her injury or disease as "anxiety - depression". In response to a question as to what happened, she stated "Cancellation of festival. Lack of confidence in management due to inaction". No date is provided for that occurrence. Three medical certificates provided by the respondent predate the date upon which she lodged her claim form. I infer they were all delivered with the claim form. The first certificate was completed by Dr K Emanuel on 29 November 1999. Her provisional diagnosis was "depression". Her certificate included advice that the respondent stated that her injury or disease occurred under the following circumstances "ongoing obstruction of work tasks". Dr Emanuel stated that the injury or disease was consistent with the stated cause. The second certificate was completed by Dr Robert White on 1 December 1999. His provisional diagnosis was "adjustment disorder with anxiety". He stated that the respondent said that the injury or disease occurred under the following circumstances "conflict in workplace". He said that the injury or disease was consistent with the stated cause. The third certificate was completed by Dr White on 8 December 1999. In that certificate his provisional diagnosis was again "adjustment disorder with depression and anxiety".

9 The respondent's claim for compensation was accepted by the appellant, as were subsequent medical certificates delivered by the respondent until her delivery of a certificate from Dr M Welch dated 4 October 2000. In that certificate Dr Welch described the respondent as presenting with symptoms of "Post traumatic stress. Depression". Dr Welch did not answer specific questions in the certificate as to:

h what the respondent stated were the circumstances under which the injury or disease occurred; and

h whether the injury or disease was consistent with whatever cause the respondent stated.

10 The information sought in these unanswered questions is fundamental to an assessment of whether the delivery of the certificate constituted a fresh claim for compensation, that is, whether it substantially changed the nature of the respondent's claim. Whilst Dr Welch did not complete the question in the certificate as to his diagnosis, his depiction of the respondent's symptoms suggests that he diagnosed her as suffering from post traumatic stress and depression. It is not so easy to overcome Dr Welch's failure to respond to the questions on the circumstances under which the disease occurred and its consistency with whatever cause the respondent stated. In completing the certificate, Dr Welch ticked a box which indicated that it was a continuing certificate. In some situations this could warrant an inference that the worker had given the provider of the certificate a 0similar description of the circumstances in which the injury or disease occurred to that detailed in an earlier certificate. In this instance, I am not able to draw such an inference as the circumstances were also not detailed in the only one prior certificate provided by Dr Welch. In the absence of details of what, if anything, the respondent told Dr Welch of the circumstances in which her disease occurred and in the absence of any indication from Dr Welch of what he considered was the cause of the respondent's disease, it is not possible to determine whether or not the respondent's presentation of that certificate constituted a fresh claim for compensation.

11 I should say that had Dr Welch's certificate included details of the circumstances in which the respondent's disease occurred which reflected the details in her initial claim form and the accompanying medical certificates, and had Dr Welch stated that the respondent's disease was consistent with the stated cause, I would not have concluded that the certificate amounted to a fresh claim for compensation. The differences between the terms used to describe the respondent's condition in Dr Welch's certificate and those used to describe her condition in her claim form and accompanying certificates do not substantially change the nature of her claim. The terms used are:

h Dr White 1/12/99 - "adjustment disorder with depression and anxiety";

h Dr White 8/12/99 - "adjustment disorder with depression and anxiety"; and

h Dr Welch 4/10/00 - "Post traumatic stress. Depression".

12 What is clear from the terms used is that the condition is a psychiatric disorder. A precise classification cannot be discerned for the disorder from the information contained in the claim form and the certificates. It may be that the disorder comes within the general classification of an anxiety disorder or one of the following residual categories for anxiety disorders:

It could also be that the disorder comes within one of the various classification subtypes for an adjustment disorder which include an adjustment disorder with depressed mood or an adjustment disorder with anxiety.

13 Accepting that Dr Welch's certificate indicates a partial change in the classification of the respondent's psychiatric disorder, to include a post traumatic stress disorder, this does not warrant a finding that the respondent's presentation of that certificate constitutes a fresh claim. The fundamental basis of her claim is unchanged, that is, that she suffers from a psychiatric disorder arising out of and in the course of her employment. Variations in the classification of that disorder within the range canvassed in this instance do not amount to a substantial change to the nature of the respondent's claim.

14 On the information that was before the learned Commissioner, I am not satisfied that it was open to him to find that the respondent's presentation of Dr Welch's certificate dated 4 October 2000 constituted a fresh claim for compensation. I am accordingly of the view that no miscarriage has been occasioned to the appellant as a consequence of the learned Commissioner misdirecting himself on the legal test to apply when determining whether the delivery of the medical certificate constituted a fresh claim for compensation.