ZEEMAN J This is an appeal from a decision of the Workers Compensation Commissioner whereby he dismissed a reference made to him by the appellant pursuant to the Workers Compensation Act 1988 ("the Act"), s86(4). In summary form, the notice of appeal alleges that the learned commissioner erred in law in:

1 holding that a worker may make a substantial recovery and

yet not be fit to return to the worker's employment;

2 making findings which were contrary to the evidence and

the weight of the evidence to such an extent that he must

have misdirected himself as to a matter of law;

3 holding that a worker who is able to work five hours per

day has made a substantial recovery from the worker's

injury;

4 holding that if a worker makes a substantial physical

recovery from an injury, it is not relevant that the worker

has not made a substantial recovery of the capacity to keep

or gain employment or sell the worker's labour in the labour

market;

5 holding that a worker cannot be incapacitated for work

because of pain because such incapacity only arises if an

injury physically prevents the movement of a part of the

worker's body;

6 failing or refusing to apply the Act, s69(4)(b);

7 holding that the Act, s69(4)(b) did not apply to the case

and did not affect the construction of the words

"substantially recovered" appearing in the Act, s86(1)(c).

2. The history of this matter, which appeared from the evidence given by the appellant before the learned Commissioner, does not appear to have been in dispute. The appellant was employed by the respondent as a confectioner. Her normal working day was of eight hours' duration. She was at work on Saturday 10 August 1991. At about 8.00am on that day she was engaged in servicing a machine whilst standing on a platform about a foot from the ground. She stepped from that platform on to a concrete floor. On the floor was a pool of brine, that brine having leaked from an overhead pipe. She stepped into that pool and slipped, falling backwards with her tailbone striking the platform. As a result the appellant suffered shock and pain in the lower back and buttocks. She reported the accident to a supervisor and was taken to see a doctor. On the following Monday she consulted another medical practitioner who advised that she undergo physiotherapy and engage in swimming. It appears that the appellant had several weeks off work. A claim for worker's compensation was made and a weekly payment, apparently upon the basis of total incapacity, commenced.

3. After several weeks, the appellant returned to work, but working six hours per day only. She found that she could not cope with working those hours because of pain. Her hours of work were reduced to three hours per day. Thereafter they were gradually increased by half an hour per day at a time. She continued to swim and undergo physiotherapy. I infer that whilst the plaintiff was working fewer than eight hours per day she was also being paid a weekly payment of worker's compensation on the basis of partial incapacity.

4. The appellant found that the physiotherapy was aggravating her symptoms and she ceased undergoing this. As at February 1992 the appellant was working 4 1/2 hours per day and performing light duties only. Those duties were described by Lyndall Hannaford, an occupational health consultant retained by the respondent, as comprising the following:

"7.30-8.30 Packing Belt (Milk Tray or Roses)

- Checking units (Sit or Stand)

8.30 Caver Mill (Tidying units, sitting)

9.30 Morning Tea

10.30 Packing Belt

- Outers (Putting Roses boxes in large box)

- Stand

11.30-12.00 Tidying up.

Duties are flexible, rotated and breaks can be taken when

needed."

5. By late June 1992 the appellant had increased her hours to 5 1/2 hours per day, although the evidence was silent as to the nature of the duties she was then performing. From time to time she found that she was unable to work the agreed number of hours because of pain.

6. Some time prior to her accident the appellant had started to have problems with her left knee, apparently associated with her playing squash, although the evidence about this was not entirely clear. The appellant suffered from swelling in the knee after playing squash and, after some time, also after walking. The evidence before the learned Commissioner did not establish that any problem with her knee affected the appellant's capacity to perform the duties of her employment prior to her undergoing surgery and the Commissioner did not so find. On 2 June 1992 she underwent surgery on the knee. This was performed by Mr Bye. She was in hospital for some four days, then on crutches for two weeks. The appellant's evidence was that she was "off work" for two months by reason of the knee surgery. On 30 July 1992 Mr Bye certified that the appellant was fit to return to work insofar as the knee injury was concerned and the appellant thereupon spoke to Mr Buchanan of the respondent company. She told him that she could return to work on the following Monday. Mr Buchanan enquired of the appellant whether she was returning to work on a full time basis. The appellant told him that she was returning on "workers comp hours" (I infer no more than 5 1/2 hours per day), whereupon Mr Buchanan told her that that was unacceptable and that she could not return to work. The appellant has not returned to work with the respondent since.

7. On 1 May 1992 the appellant was examined by Mr Browne, an orthopaedic surgeon. The examination was at the instance of the respondent. That was the only occasion upon which Mr Browne examined the appellant. On 15 June 1992 Mr Browne signed a certificate, purportedly pursuant to the Act, s86(1)(c), which certificate included the following paragraph:

"It is my opinion and I so certify that Mrs Goscombe has

wholly or substantially recovered from the injury suffered

on the 10/8/91 having undergone a very reasonable

rehabilitation program. I further certify that it is my

opinion that Mrs Goscombe's incapacity for work is no longer

due wholly or substantially to her injury suffered on the

10th August, 1991 but her incapacity is caused by her knee

condition which is not related to her accident on 10th

August, 1991."

8. On 18 June 1992 that certificate was served on the appellant. The appellant concedes that it complies with s86(1)(c). I will assume that a notice of intention to terminate in the terms of s86(3)(a) also was served upon the appellant. It appears that a copy of such notice was tendered to the learned Commissioner and taken in by him as an exhibit, although such a document is not amongst the exhibits transmitted to this Court. By application dated 23 June 1992 the appellant referred the matter to the Commissioner pursuant to s86(4). The last occasion upon which a weekly payment was made to the appellant was 28 June 1992.

9. In order to give consideration to the grounds of appeal, it is necessary to define just what was "the matter" which was referred to the Commissioner and, by reference to that, what it was that he had to determine. During the course of closing addresses before the learned Commissioner, counsel for the appellant appears to have submitted that the question was whether, as at the date of the termination of the weekly payment, the appellant had substantially recovered from the effects of her injury. The learned Commissioner accepted that submission and counsel for the respondent expressed his concurrence. Before me, counsel for the appellant did not adhere to that submission.

10. In order to determine the question it is necessary to give consideration to the terms of the relevant portions of s86. Those provisions are in the following terms:

"86 - (1) Except in pursuance of a determination made by

the Commissioner under section 88 (2), an employer may,

subject to this section, terminate or reduce a weekly

payment made to a worker only where -

...

(c) a medical practitioner who has examined the worker has

certified that, in his opinion, the worker has wholly

recovered or substantially recovered, from the effects of

the injury in respect of which the payment is being made or

that the worker's incapacity is no longer due, wholly or

substantially, to that injury;

...

(2) A certificate referred to in subsection (1) (c) shall

specify the grounds upon which the opinion expressed in it

is given.

(3) An employer who intends to terminate or reduce a weekly

payment made to a worker shall cause to be served on the

worker -

(a) a notice of his intention to terminate the weekly

payment being made to the worker, or to reduce that payment

by the amount specified in the notice at the expiration of a

period of 10 days from the day on which the notice was

served on the worker; and

(b) where the employer's intention to terminate or reduce is

based on a certificate referred to in subsection (1) (c), a

copy of that certificate.

(4) A worker who has been served with a notice under

subsection (3) (a) and who wishes to dispute the termination

or reduction of the weekly payments being made to him may

refer the matter to the Commissioner for determination.

(5) An employer who terminates or reduces a weekly payment

otherwise than in accordance with this section is guilty of

an offence and is liable on summary conviction to a fine not

exceeding 20 penalty units."

11. There are at least two competing constructions of the word "matter" insofar as it relates to a termination or reduction under s86(1)(c). On the one hand it may be argued that it is limited to a consideration of whether the requirements of s86(1)(c) and (3) have been satisfied. On the other hand it may be argued that it encompasses all those matters but also, if the requirements of s86(1)(c) and (3) have been satisfied, a consideration of whether as a matter of fact the matters certified to by the medical practitioner are made out. There are other possible constructions to which I refer in due course. On a construction of the equivalent but somewhat different provisions contained in the applicable legislation, the former view was adopted by the South Australian Full Court in Pagliacci v General Motors-Holdens Ltd (1980) 23 SASR 126 at 136-137, and the latter view was adopted by the Western Australian Full Court in Heat Containment Industries v Kimberley (1990) 2 WAR 47 at 58. In Osborne v EST Hotel Enterprises Pty Ltd 89/1992 I proceeded upon the basis that on a reference under s86(4) consequent upon the service of a certificate of the type referred to in s86(1)(c), the functions of the Commissioner extend beyond a mere consideration of whether the statutory prerequisites to termination or reduction exist and include, where those statutory prerequisites exist, a consideration of whether as a matter of fact the matters certified to exist. In that case the argument of both counsel proceeded upon the assumption that that was the correct basis. The question requires further consideration in the present case.

12. As a preliminary matter I will consider whether s86 is to be construed as prohibiting the termination of a weekly payment at a time when there remains on foot a reference under s86(4) which has not been determined by the Commissioner. I do so because whether or not s86 is to be so construed is relevant to a consideration of the nature and ambit of the "matter" referred to in s86(4). Section 86(1) is expressed to be subject to the other provisions of s86. It follows that an employer is not entitled to terminate upon any of the grounds set forth in s86(1) unless the employer has done what is required by s86(3) and that the period of ten days, required to be specified by the notice, has expired. Section 86 is silent on the question of whether, where a worker has referred the matter pursuant to the provisions of s86(4), the employer is entitled to terminate the weekly payment at the expiration of the period of ten days even though the reference has not then been determined. In other jurisdictions specific provision is made whereby the weekly payment may not be terminated until such time as the relevant application made by the worker has been determined. The previous legislation, the Worker's Compensation Act 1927, s21(4), made specific provision as to what was to occur in relation to the payment of a weekly payment pending resolution of a dispute such as the present. It is therefore surprising to find that Parliament has not seen fit to make any specific provision as to this matter in the Act. The provisions of s86 are of similar import to the provisions of the Workmen's Compensation Act 1971 (SA), s52 and it may be thought that the draftsman of the Act used the South Australian section as a model. It is difficult to understand why the draftsman did not see fit to make express provision, as was done in South Australia and elsewhere, as to whether an employer is entitled to terminate a weekly payment under s86 whilst a reference under s86(4) remains undetermined.

13. It is doubtful whether s86 evinces a sufficient intention that an employer is prohibited from terminating a weekly payment for so long as a reference under s86(4) remains undetermined. On the one hand it may be argued that as s86(1) is expressed to be "subject to this section" it ought to be read prohibiting a termination or reduction where there remains outstanding a reference under s86(4). Nevertheless if Parliament had intended that there be such a prohibition it might have been expected to so provide in express terms. The apparent right of a worker to effect a reference under s86(4) whether or not the period of ten days specified in s86(3) has expired and whether or not the proposed termination or reduction has been effected tends to support the proposition that the right to terminate or reduce a weekly payment is unaffected by the fact that a reference remains to be determined.

14. In the circumstances it is appropriate to have regard to some extrinsic materials as authorised by the Acts Interpretation Act 1931, s8B. In moving the motion that the bill which became the Act be read a second time the Minister for Labour and Industry made it clear that the bill adopted many of the recommendations which had been made by the Law Reform Commission but that it did not purport to give effect to those recommendations in toto as the Minister said that the bill took into account the views of various interested and affected parties (House of Assembly, Parliamentary Debates 20 April 1988, page 865). I take it from what the Minister said that each of the Commission's recommendations had been considered and that many of them had been adopted, either wholly or in part, but that the bill did not purport to be precisely in accordance with what the Commission had recommended. The reference to the recommendations made by the Commission undoubtedly was a reference to its Report No 46 on the Workers' Compensation Act 1927 which was laid before both Houses of Parliament.

15. In dealing with the question of the termination of a weekly payment of compensation the Commission observed and recommended as follows:

"Many submissions referred to the injustice in Section

21(1)(e) of the Act which enables an employer to terminate

weekly payments by his unilateral decision that the worker

has ceased to be entitled to them. We agree that Section

21(1)(e) of the Act should be repealed.

The notice provision of Section 21(2) of the Act relating to

cessation or diminution of payments should be extended from

10 to 30 days to enable the worker to obtain a further

medical examination and submit a further report. But the

worker should be required to give notice in writing to the

employer or his insurer within 10 days that he intends to

dispute the certificate. It is unreasonable for

compensation to continue for longer than 10 days if the

worker has in fact recovered.

The notice provisions of section 21(2) which apply only to

medical certificates should also apply to cessation or

diminution of weekly payments that occur as a result of

weekly earnings exceeding compensation payments.

For completeness the section should also provide that all

cases of cessation or diminution of weekly payments may be

referred by either party to the Tribunal and that pending

its decision, weekly payments should continue. These

amendments are necessary because the cessation or diminution

or (sic) weekly payments could have a disastrous effect on

the worker because his family could become dependent on

Social Service which may not be adequate to meet day by day

commitments.

Some respondents complained that on notice of termination by

the employer no compensation was received by the worker

until the dispute was finally settled or determined by a

judge. Reference was made to the hardship that this caused

to the worker and his family."

16. It will be seen that the Act has not adopted a number of those recommendations. In particular it does not provide for any express prohibition upon terminating a weekly payment pending a determination of the relevant dispute nor does it provide that a worker must refer a dispute within a particular period of time. Those considerations tend to suggest that there was not intended to be a prohibition upon terminating a weekly payment the subject of an outstanding reference to the Commissioner. Whilst not considering the matter to be particularly clear, I would come to the same conclusion without the aid of the extrinsic material. As that material tends to confirm that construction I adopt it as being correct.

17. In Pagliacci v General Motors-Holdens Ltd (supra) the Full Court of the Supreme Court of South Australia concluded that on a proper construction of the South Australian Act the equivalent provision therein contained required no more than a determination of whether the statutory prerequisites had been fulfilled and did not authorize an examination of the underlying basis of the certificate. Speaking of the South Australian ss39, 51 and 52, which broadly find their equivalent in the Act, ss42, 69 and 86, King CJ (with whom Sangster J concurred) said, at 136-137:

"I think that the true meaning of s 52 can be gathered from

its language and from a consideration of its place in the

scheme of the Act. There is a prohibition on pain of

conviction and penalty against discontinuance or diminution

of the weekly payments. There is grafted on to that

prohibition a 'right' to discontinue or diminish if either

set of conditions specified in sub-s (1) exists. If it is a

question of recovery, the 'right' comes into existence upon

certification by a medical practitioner of total or partial

recovery, the service of the certificate and notice on the

workman and the expiration of the twenty-one day period of

the notice. If the workman disputes the 'right' by making

an application pursuant to sub-s (2) the question for the

Court is whether the 'right' has come into existence. The

question then is whether the condition which brings the

'right' into existence has been fulfilled, that is to say

whether there has been in truth a certification complying

with the section, service in accordance with the section and

expiration of the required period. The 'right' whose

existence is in question does not relate to the ultimate

liability to make the weekly payments under s 51. Any

dispute as to that liability must be determined by the Court

in properly instituted proceedings under s 39. The 'right'

in question under s 52 is the limited 'right' to be free of

the prohibition under pain of conviction and penalty, which

is imposed by the section itself. A decision as to whether

that 'right' exists has no bearing on questions of ultimate

liability to pay compensation."

18. However, speaking of quite similar provisions contained in the Western Australian Act (although those provisions contained some not immaterial differences) Rowland J (with whom the other members of the Court concurred) said in Heat Containment Industries v Kimberley (supra), at 58:

"If it be the fact that the certificate does not contain the

information required, then that is the end of the matter.

The employer is simply not entitled to discontinue the

payments and the worker is entitled to an order in the terms

of his application, namely, that the payments be not

discontinued or diminished, or, alternatively, that the

employer continue to make the relevant payments.

If, on the other hand, there is no dispute as to the

validity of the certificate, or if the Board finds that it

does substantially comply with the provisions of the Act,

but, in either case, there is a dispute about the facts or

opinions set out in the certificate, then that dispute can

be heard by the Board. And, in accordance with Vurlow, the

Board can hear medical and other evidence that touches on

the correctness of the relevant certificate and, if

necessary, can hear evidence touching on the deeming

provisions of cl 8 of Schedule 1. And they will be dealt

with on an interim basis in chambers."

19. It is appropriate to examine the reasoning which led King CJ to his conclusions. His Honour commenced his consideration of the question by setting forth the following passage from the dissenting judgment of Judge Layton in Matto v General Motors-Holdens Pty Ltd (Case 28/1978) in the Full Industrial Court of South Australia:

"First, the present expeditious way in which s 52

applications are dealt informally upon affidavit evidence

will dramatically change and matters instead will become

prolonged, elaborate and will, in effect, be dealt with as

though they were applications on a Form 2 pursuant to s 9 of

the Act but will still ironically be termed a summary matter

and the rules of evidence will not apply. Second, if the

majority is correct, then Industrial Magistrates will be

hearing and finally determining substantial liability issues

between the parties as to incapacity unless an application

is made by the parties for the matter to be heard by a Judge

and for the usual procedure to be waived. Third, as s 52

can only concern itself with the issue of incapacity, then

on a s 52 application no other issues, such as injury

arising out of or in the course of employment, can be dealt

with and it may well be that after a s 52 matter is

determined another proceeding will have to be brought to

deal with the other outstanding issues. At present, this is

no problem as s 52 matters are dealt with summarily and

expeditiously: however, if the proceedings become prolonged

then both parties will be put to the further expense of yet

another long proceeding to deal with the other matters.

Fourth, as a result of the changes which would occur, it may

well happen that workmen will choose to issue a Form 2

application rather than challenge a s 52 notice, thereby

rendering s 52 applications redundant."

20. His Honour expressed the view that the incongruous results which would flow from the South Australian Act, s52 being construed as requiring a consideration of the ultimate liability to pay compensation, as those results were expressed by Judge Layton, raised the question whether it could be right that the issue for determination extended beyond a consideration of whether the employer had established his right to terminate or reduce the weekly payment by compliance with the relevant statutory provisions.

21. I do not consider that any of the considerations expressed by Judge Layton are relevant to a construction of the Act. Whether ultimate liability may be determined on a reference under s86(4) or only may be determined on a reference under s42 will not affect matters of procedure. The Act does not provide for two categories of procedure as was the case in South Australia. The Act, s49(1)(a) provides that the Commissioner is not bound by the rules of evidence in any proceedings before him so that the admissibility of evidence does not depend upon the nature of the proceedings before the Commissioner. The Act does not provide that different types of reference are to be determined by judicial officers of different categories. The matters raised by Judge Layton all find their origin in the nature of the procedural provisions contained in the South Australian Act none of which find their equivalent in the Act.

22. Having referred to those observations of Judge Layton, King CJ then said, at 135-136:

"I turn now to an examination of the section in itself and

in its relationship with other parts of the Act. The

section operates on a factual situation in which the

employer is making weekly payments to the workman pursuant

to s 51. He may be doing this in voluntary discharge of his

obligations, or because an application that s 53(1) does not

apply has not been made in time or has been refused, or

pursuant to an order of the Court made on an application

under s 39. The section prohibits discontinuance or

diminution of the payments except under specified

conditions, and makes discontinuance or diminution otherwise

than in accordance with the section an offence carrying a

fine. The entitlement to discontinuance or diminish under

the specified conditions is spoken of in sub-s (2) as a

'right'. If the workman disputes that 'right' he may apply

to the Court. If the application is dismissed the payments

may be discontinued or diminished. The Court may 'make such

order as to the continuance of the weekly payments as it

thinks fit'. The application must be dealt with in the

summary list. The conditions which give rise to the 'right'

to discontinue or diminish are two in number. The first is

the return of the workman to work. The second is

certification by a medical practitioner that the workman has

wholly or partially recovered or that the incapacity is no

longer a result of the injury and service on the workman of

a copy of the certificate including the grounds for the

opinion, together with twenty-one days notice of intention

to diminish or discontinue the payments. On a strictly

literal reading of the section as it stood prior to the 1979

amendment it could be argued that the second condition is

not fulfilled if the workman makes application to the Court

within the twenty-one day period. I think, however, that

such a reading would carry literalness too far. I do not

think that failure to make application is an ingredient of

the second condition giving rise to the 'right'. The

intention is simply to ensure that the payments are not

discontinued or diminished in fact until the Court has

adjudicated upon the workman's challenge to the right.

Although it is not permissible to use the 1979 amendment as

an aid to the construction of the section as it stood prior

to the amendment, it is interesting to note that this

meaning is made clear by that amendment. The reference to

the application by the workman is removed from sub-s (1)

which specifies the conditions which found the 'right' and

appears in a new sub-s (2a), which provides directly that

where the workman takes out the application the payments

shall not be discontinued or diminished pending

determination of the application. Section 52 immediately

follows the section which fixes the amount of compensation

as a weekly payment during incapacity. It immediately

precedes the section which obliges the employer to commence

weekly payments upon receipt of evidence of the workman's

compensable incapacity unless the Court considers that a

genuine dispute as to liability exists. The section is by

its terms limited in its scope to the discontinuance or

diminution of payments on grounds of recovery. Its

procedures cannot be used to discontinue payments on other

grounds. Issues such as whether the recipient of the

payments was a workman, or whether he suffered an injury, or

whether the injury occurred in the course of or arising out

of the employment cannot be resolved under s 52. Issues

which could be raised in s 53 proceedings cannot be raised

in proceedings under s 52.

I cannot see any warrant in the section, in its relationship

with other parts of the Act, or in legal principle, for the

view which had apparently taken root in the Industrial Court

that the question in an application under the section is

whether it is inappropriate that payments should be

discontinued or diminished and that if the evidence as to

incapacity is finely poised it is inappropriate. What must

be established by the workman on such an application is not

that it is inappropriate that payments be discontinued or

diminished because the evidence is at least finely poised,

but whether the conditions necessary to found the 'right' of

the employer to discontinue or diminish exist. It is

necessary to consider what those conditions are.

As the Full Industrial Court saw it, the section, in

addition to prohibiting under penalty arbitrary

discontinuance or diminution of payments, provides the

machinery for determining finally the issue whether

incapacity continues and in consequence whether the

workman's right to weekly payments under s 51 continues. In

my opinion, this construction faces some formidable

difficulties. The foremost of these difficulties is that no

such indication is to be found in the words of the section.

The full Industrial Court considered that the question for

the Court is 'whether the workman had recovered either

wholly or partially from the injury or whether the

incapacity is no longer a result of it depending upon the

tenor of the relevant certificate of the medical

practitioner'. No such question can be gathered from the

language of the section. Sub-section (1) prescribes the

conditions which give rise to the right to discontinue or

diminish payments and the relevant condition relates to

notification and service of the certificate and notice. The

question for the Court relates to the existence of that

right. A further difficulty is that the section is not apt

to deal with the final resolution of the right to

discontinue payments. This right may depend upon issues as

to liability for compensation which do not come within the

scope of this section at all. Moreover the summary

procedure prescribed by the section cannot have been

intended for the final determination of contentious issues

as to the continued existence of work caused incapacity,

which are always of the utmost importance and sometimes of

considerable complexity. The provision that a s 52

application must be dealt with in the summary list and

cannot be removed from it is a strong indication against the

Full Industrial Court's construction."

23. Accepting his Honour's reasoning it is appropriate to make the following observations as to its application to the Act:

(a) The Act, s86 does not speak of any "right" of the

employer. It does no more than prohibit the termination or

reduction of a weekly payment except in the particular

circumstances.

(b) The Act, s86 is to be construed as permitting an

employer to actually terminate or reduce a payment even

though a reference remains to be determined whereas the

South Australian Act contained an express provision to the

contrary.

(c) The grounds specified in s86(1) are not limited in their

scope to a termination or reduction on the grounds going to

the recovery of the worker as was the case in South

Australia.

(d) The Act does not provide for some special summary

procedure in relation to a reference under s86(4) as was

provided for in South Australia.

24. King CJ appears to have considered that the competing constructions of the provisions of the South Australian Act, s52 as to the nature of the powers of the relevant court upon a worker disputing an intended termination or reduction of weekly payment were either that such court merely was to consider whether the employer had taken the steps which the section prescribed as a prerequisite to the employer taking such action or that in addition such court was to consider if those steps had been taken, whether the worker was entitled in absolute terms to continue receiving the weekly payment which he had been receiving. A third possible construction, namely that such court is to examine whether those steps have been taken and, if they have been, whether as a matter of fact the matters certified to have been made out, does not appear to have been considered by his Honour. Indeed a fourth construction was suggested in Western Australia, namely that once a worker has disputed a proposed termination or reduction the relevant court is not concerned with whether the prescribed procedural steps have been taken but is required to consider in absolute terms whether the weekly payment ought to continue and could determine that it ought not to continue or that it ought to be reduced even if the employer had not taken the prescribed procedural steps (Mardathuna Pastoral Co v Higgins (1982) WAR 177 per Olney J at 190) but that construction has since been rejected (Heat Containment Industries v Kimberley (supra) at 54).

25. The very material differences between the Act and the South Australian Act are sufficient to distinguish Pagliacci v General Motors-Holdens Ltd (supra). Nevertheless some of the reasoning of King CJ, namely considerations of cost, confusion and duplication, might be considered to support the construction of s86 which I applied in Osborne v EST Hotel Enterprises Pty Ltd (supra). Such a construction avoids there being raised issues entirely irrelevant to the subject matter of the notice and the certificate. Other than those considerations, the following matters favour such a construction:

(a) Each of the paragraphs contained in s86(1), other than

par(c), depends upon the existence of facts directly

relevant to whether a weekly payment ought to be terminated

or reduced as distinct from a certificate certifying to the

existence of such facts so that any reference under s86(4)

in respect of a proposed termination or reduction upon any

of those grounds requires the Commissioner to investigate

facts which go beyond mere procedural matters.

(b) A worker may refer the matter under s86(4) at any time

after the employer has acted under s86(3) and the employer

may terminate or reduce a weekly payment even though such a

reference remains outstanding so that there is no suggestion

that the reference must be determined quickly without a full

consideration of the facts.

26. However, with respect the approach adopted by King CJ may be doubted as being correct. In that context it is appropriate to make some further reference to Heat Containment Industries v Kimberley (supra). The statutory provisions there under consideration were very similar to the South Australian provisions considered in Pagliacci v General Motors-Holdens Ltd (supra). The material differences between the two provisions were as follows:

(a) The South Australian Act limited the right of a worker

to seek an order under the section by requiring that it be

sought within twenty-one days of the service of the notice

of intention. The Western Australian Act conferred a

similar right so limited but also conferred such a right in

the case where no notice had been served but where there had

been a termination or reduction (except for specified

reasons) in which event such an application could be made

within a specified time of the termination or reduction.

(b) The South Australian Act required the worker's

application to be heard and determined as proceeding in the

"summary list" whereas the Western Australian Act required

it to be heard and determined "as an application in

chambers".

27. Rowland J (at 55) made a passing reference to Pagliacci v General Motors-Holdens Ltd (supra) but gave no consideration to the reasoning adopted in that case. That appears to have been because his Honour was directing his attention to a consideration of what appears to have been the real question in that case, namely whether there was any occasion for the Workers Compensation Board to consider on the merits whether there ought to be a termination or reduction upon the basis of the service of a medical certificate where that certificate did not conform to the statutory provisions or whether that non-conformity decided the matter against the employer. As to whether such a consideration on the merits was required where the required procedural steps had been taken his Honour was content to follow what had earlier been decided in Vurlow v Leighton Nursing Home (1978) WAR 15. That case was concerned with an earlier Western Australian section which (so far as is relevant) was in the following terms:

"12B. (1) Where weekly payments of compensation for total

or partial incapacity are made to a worker under this Act

they shall not be discontinued or diminished without the

consent of the worker except where the worker has returned

to work or a medical practitioner ... has certified that the

worker has wholly or partially recovered or that the

incapacity is no longer a result of the injury and a copy of

the certificate (which shall set out the grounds of the

opinion of the medical practitioner) together with at least

twenty-one clear days' prior notice of the intention of the

employer to discontinue the weekly payments or to diminish

them by such amount as is stated in the notice has been

served by the employer upon the worker and unless within

that period the worker has not made an application to the

Board under subsection (2) of this section.

(2) A worker who disputes the right of his employer to

discontinue or diminish the weekly payments referred to in

subsection (1) of this section may within the period of

twenty-one days referred to in that subsection make an

application to the Board for an order that the weekly

payments shall not be discontinued or diminished and the

application shall be heard and determined as an

interlocutory proceeding."

28. Burt CJ dealt with the matter quite briefly when he said, at 17:

"The application by the worker for an order under sub-s (2)

is to be 'heard and determined' and recognizing that the

application is but 'an interlocutory procedure' the Board

must, I think, receive such evidence as may be placed before

it as is relevant to the issue raised by the certificate

which has been served upon the worker."

29. Wickham J, after referring not only to s12B but also to s12A (which set up a scheme not dissimilar to that provided for by the Act, s81), said at 19-20:

"There are of course a large number of different situations

which could arise under each of these sections, but the

general intent that interim weekly payments should be

provided to the worker and that each the employer and the

worker should be furnished with certain statutory safeguards

by way of interlocutory procedures, is clear enough. The

general idea being apparent, there again seems to be no

reason under s 12B why the Board should inhibit itself in

its deliberations on the interlocutory applications. The

practice and procedure might require some attention if the

Board is not to find itself dealing with such applications

which, in result, are really final determinations of

liability, but that is, if necessary, a matter for the

regulations. There is nothing in my opinion in the statute

to limit the Board in any of the ways suggested."

30. The third member of the court, Brinsden J, was a little more hesitant in embracing that view but nevertheless did so when he said, at 23-24:

"I think the correct approach to s 12B, is to look at it as

if it was part of a scheme set up by s 12A. I believe that

the words in sub-s (1) reading 'where weekly payments of

compensation for total or partial incapacity are made to a

worker under this Act', refer to the weekly payments for

total or partial incapacity paid pursuant to s 12A. The

scheme of the section is to make unlawful a discontinuance

of those payments, unless one or more of three circumstances

apply, firstly, unless the worker has consented to their

discontinuance or diminution, or secondly, the worker has

returned to work, or thirdly, a medical practitioner

registered under the Medical Act has certified that the

worker has wholly or partially recovered, or that the

incapacity is no longer a result of the injury and a copy of

the certificate, together with at least 21 clear day's prior

notice of the intention of the employer to discontinue the

weekly payments or to diminish them, has been served by the

employer upon the worker. Sub-section (2) provides as

follows: 'A worker who disputes the right of his employer to

discontinue or diminish the weekly payments referred to in

subsection (1) of this section may within the period of

twenty-one days referred to in that subsection make an

application to the Board for an order that the weekly

payments shall not be discontinued or diminished and the

application shall be heard and determined as an

interlocutory proceeding.'

In my view, this sub-section is only dealing with the third

method by which an employer might seek to discontinue or

diminish the weekly payments he has been making pursuant to

s 12A. What the worker disputes is the right of the

employer to discontinue or diminish these payments by reason

of having obtained and served upon the worker the stipulated

medical certificate, and given him 21 days' notice of prior

intention to discontinue or diminish payments. The

application by the worker disputing this right is heard as

an interlocutory proceeding because it is an interlocutory

proceeding in relation to a claim for compensation commenced

by reason of compliance by the worker with the provisions of

s 12. On this interpretation, therefore, it would be

reasonable I think, to say that the concern of the Board

hearing an application under sub-s (2), is to be satisfied

that the employer has complied with the requirements of sub-s

(1). With some hesitation I have reached the conclusion

that the Board would be entitled to receive evidence which

goes to challenge the certificate, but only so far as is

consistent with the proceeding remaining interlocutory. On

this sort of application it is not the function of the Board

to determine liability."

31. I am content to adopt the view expressed in that case subject to the qualification that because of the absence from the Act of any requirement that the Commissioner's determination on a reference under s86(4) be interlocutory in nature, the Commissioner's exercise of his jurisdiction is not constrained by any such requirement.

32. There is a final and most compelling reason for concluding that s86(4) ought to be construed as requiring the Commissioner to consider firstly whether the procedural requirements in relation to a certificate under s86(1)(c) have been complied with and, if they have been, secondly to consider the correctness of the opinions expressed in the certificate and of the facts upon which the opinions are based. Those questions are encompassed by "the matter" which may be referred to the Commissioner. This may be contrasted with the South Australian Act, s52(2) which provided that a worker "who disputes the right of his employer to discontinue or diminish the weekly payment ... may ... take out an application to the court for an order that the weekly payments shall not be discontinued or diminished ..." There is a fundamental difference between disputing a "right" which is conferred upon someone who has taken particular procedural steps and referring a "matter". In considering the meaning of the word "matter" appearing in the Trade Practices Act 1974 (Cth), s155(1), Brennan J said in W A Pines Pty Ltd [1980] FCA 79; (1980) 30 ALR 559 at 565:

"'Matter', said Franki and Northrop JJ in Melbourne Home of

Ford Pty Ltd v Trade Practices Commission (1979) 5 TPC 26 at

47; ATPR 40-107 at 18,097 'is to be construed in its

ordinary sense of an affair or a thing'. It refers to a

body of facts, a body of facts which 'constitute' or 'may

constitute' a contravention. A contravention is constituted

by the conduct of persons (whether corporate or natural) and

the factual circumstances attendant upon conduct, so the

'matter' to which s 155(1) refers comprehends the conduct of

persons and the circumstances attendant upon it. Whether or

not the relevant body of facts constitutes a contravention

is a matter of law, and that question does not turn upon the

perception or knowledge of the facts held by the Chairman or

any other person. But when the section speaks of a matter

which 'may constitute' a contravention, it speaks not of the

relevant and entire body of facts as they exist or have

existed - for that body of facts either does or does not

constitute a contravention - but of a body of facts which

are not fully known and which, if and when they are fully

known, may reveal themselves as constituting a

contravention."

33. Where an employer acts in accordance with s86(3), relying upon a certificate for the purposes of s86(1)(c), the "matter" extends beyond the mere body of facts concerning the form of the certificate and compliance with s86(3). It incorporates the facts upon which the certificate is based and the opinions expressed in it. Once the matter is referred, it is incumbent upon the Commissioner to determine whether as a matter of fact the claimed circumstances justifying the proposed termination or reduction exist. Insofar as a proposed termination or reduction is upon the basis of s86(1)(c), that requires a consideration not only of whether the certificate relied upon satisfies the requirements of that provision, but also whether as a matter of fact at the time that the medical practitioner examined the worker the worker had wholly recovered or substantially recovered from the effects of the relevant injury or that the incapacity was no longer due wholly or substantially to that injury. It is the time at which the medical practitioner examined the worker which is relevant. The certificate can only speak of what the medical practitioner found upon such examination. It is the state of affairs existing at that time which founds the employer's claim to be entitled to terminate or reduce a weekly payment. Any claimed entitlement to terminate or reduce based upon some other state of affairs is not encompassed by "the matter". If a claimed entitlement so based is sought to be relied upon by an employer he must invoke the relevant procedure provided for by s86 or s88 in relation to such other state of affairs.

34. The question for the learned Commissioner was whether, in the terms of s86(1)(c), the state of the worker at the time she was examined by Mr Browne was such that there had been the degree of recovery referred to in s86(1)(c) or that her incapacity was then no longer due, wholly or substantially, to that injury. It was the condition of the worker at the time of that examination which provided the legal justification (if there was legal justification) for a termination or reduction of the weekly payment. It was for the Commissioner to determine whether in fact there was such legal justification.

35. It is clear that the learned Commissioner did not approach the matter in this way, but determined the matter by reference to the condition of the appellant as at the actual date of termination, which appears to have been 28 June 1992. In many cases it readily might be said that the same conclusion would be reached whether the matter was considered as at the date of the examination or as at the date of the certificate or as at the date of termination. However, that is not the situation in the present case because of the intervention of the surgery which the appellant underwent on 2 June 1992.

36. The first ground of appeal seeks to challenge the following appearing in the learned Commissioner's reasons for his decision:

"It is of course a matter of fact in each case whether a

worker has 'substantially recovered' from an injury. A

worker may conceivably make a substantial recovery and yet

not be fit to return to his employment. However it is a

relevant circumstance to take into account in deciding

whether there has been a substantial recovery."

37. I observe that s86(1)(c) does not speak of a worker substantially recovering from an injury, but rather employs the words "has wholly recovered or substantially recovered, from the effects of the injury". If the learned Commissioner was saying that a worker may have made substantial recovery from the effects of the relevant injury and yet not be fit to return to the worker's employment because of some extraneous reasons, then what he said was unexceptional. However, if the learned Commissioner intended to convey that where the effects of a compensable injury are such that a worker is not fit for work then it may still be said that there has been a substantial recovery from the effects of the injury, then plainly he was in error. In the context I tend to think that the learned Commissioner intended to convey the former. I repeat the observations which I made in Osborne v EST Hotel Enterprises Pty Ltd (supra) at 8.

38. The second ground of appeal attacks the learned Commissioner's reasons and conclusions generally. The Commissioner concluded those reasons by expressing the opinion that the appellant was not partially incapacitated for work "by reason of her work injury when compensation was terminated by the employer late last June." For reasons which I have already expressed, that was not the question which the learned Commissioner was required to determine.

39. The evidence which the Commissioner heard was that of the appellant, her orthopaedic specialist, Mr Binns, and her general practitioner, Dr Ayling (both called by the appellant) and Mr Browne, called by the respondent. Had the learned Commissioner accepted the evidence given by the appellant, then he would have found that as at 7 May 1992, and in fact at all times up to the hearing of the reference, the appellant was suffering from a pain to such a degree that she was incapacitated from working for longer than 5 hours per day. The specialist medical practitioners who gave evidence conceded that largely they were in the hands of the appellant as to the actual degree of pain being suffered by her. Dr Ayling, who had seen the appellant on a regular basis for some time, gave evidence of observing muscle spasms which, to him, appeared to be objective signs of the appellant in fact being in pain. It was incumbent upon the learned Commissioner to make clear findings of fact as to the degree of pain which was being suffered by the appellant and the effects of such pain. The learned Commissioner said that he accepted "the worker's evidence that she still has symptoms of pain in her lower back from time to time". Beyond expressing the opinion, without giving reasons therefor, that that pain ought not to prevent her from working full time at her former occupation, albeit with some pain and discomfort, the learned Commissioner paid no apparent attention to the relevant evidence given by the appellant and made no mention of the evidence given by Dr Ayling.

40. The learned Commissioner gave some attention to the evidence given by the orthopaedic specialists. Mr Binns said that he had seen the appellant on several occasions, the last of which was 20 July 1992. In his opinion the appellant had suffered a typical soft tissue injury to the spine. He said that sufferers of this type of injury tended to get better slowly over a long period of time and that it could take up to two years for the appellant to become symptom free. He said that the appellant's principal complaint to him was an area of tenderness in the thoracic spine with some lesser degree of tenderness in the lower part of the back in the area of the coccyx.

41. Mr Browne gave evidence of his examination of the appellant. Whilst in his certificate he had made reference of his examination of the appellant's left knee, he did not repeat that in evidence and did not adopt that part of his report in evidence. The appellant was not cross-examined as to the part which the knee condition may have played in her incapacity. However, Mr Browne did say in evidence that when he examined her he thought that the appellant was then fit for work were it not for her knee. His evidence about that was vague. The fact is that at the time of the examination the appellant was working limited hours. It was not suggested to the appellant in cross-examination that her hours were limited by reason of any problem with her knee. Mr Browne said that the appellant had some tenderness in the lumbar region and considerable tenderness over the coccyx. He accepted that she had pain in those areas. He thought (contrary to the opinion expressed by Mr Binns) that old Scheuermann's disease would have prolonged her symptoms. His view was that he felt that the appellant would have had pain disabling her from working for up to six months from her accident, but that thereafter she should have been able to return to full time work. When it was put to him in cross-examination that if the facts were that the appellant had returned to work 6 hours a day, then reduced her hours to 3 per day and then gradually increased her hours to 5 per day, not being able to work longer because of the pain, then those facts indicated that she was not fully fit for work, Mr Browne rather surprisingly said that he could not answer the question because it was "getting a bit too hypothetical" for him.

42. The reference to Scheuermann's disease appears to be of no significance. Mr Binns thought it irrelevant in that it would not have affected the appellant's symptoms. Mr Browne considered it of some relevance as tending to prolong symptoms, but in the legal sense it still was irrelevant as an employer must take a worker as he finds him or her.

43. Mr Binns thought that the only difference of opinion between him and Mr Browne as to the appellant's condition and ability to work was that Mr Browne said that she would be better in six months and he, Mr Binns, said that it might well take a couple of years. I agree. It is therefore somewhat surprising to find that the learned Commissioner found that the injury to the lower back suffered by the appellant caused a great deal of pain which should gradually subside over a period of time of up to two years at the most, yet went on to say that he preferred Mr Browne's evidence to that of Mr Binns where there was a conflict.

44. The learned Commissioner expressed no reasons for preferring Mr Browne's evidence. It is incumbent upon any tribunal of fact to carefully scrutinize expert evidence. Any expert opinion which is expressed by such a witness relies upon the factual assumptions upon which the opinion is expressed. In this case the learned Commissioner permitted Mr Browne to express the opinion that the appellant had made a substantial recovery from her injury (which, as I have pointed out, is not the statutory test) although it might be thought that that was a matter for the Commissioner. Nevertheless, it was incumbent upon the learned Commissioner to carefully consider the basis upon which Mr Browne expressed that opinion. Plainly it was based upon an absence of any continuing significant pain and perhaps upon his supposed familiarity with the workplace and the nature of the duties which the appellant was required to perform. As to continuing pain, there was extensive evidence from the appellant. To the extent that the learned Commissioner mentioned it he appears to have accepted it. It was incumbent upon him to make careful findings of fact as to the nature, degree and origin of the pain being suffered by the appellant. If those findings were significantly different from the assumptions as to pain made by Mr Browne then his opinions based on those assumptions could not have been accepted. There was no sufficient evidence of what was Mr Browne's understanding as to the nature of the workplace and the nature of the appellant's duties to enable the learned Commissioner to conclude that his understanding in any way conformed to the actual situation. Again, an opinion based on some unspecified understanding of the factual situation could not have been accepted.

45. A determination by the learned Commissioner of the reference in favour of the respondent inevitably required him to reject the basic theme of the appellant's evidence, namely that she suffered severe incapacitating pain by reason of her compensable injury, at least if she continued at work for longer than 5 hours per day. The learned Commissioner failed to make any such findings of fact and such findings as he did make suggest that he took the contrary view.

46. During the course of his reasons, the learned Commissioner said:

"Essentially this is a pain management case not involving

structural damage to the body.

In my view the employer discharged the onus of proving, on

the balance of probabilities, that there had been a

'substantial recovery' within the meaning of Section 86 of

the Act. I accept the worker's evidence that she still has

symptoms of pain in her lower back from time to time.

But in my opinion those symptoms should not prevent her

working full time at her old occupation, though no doubt

with some pain and discomfort."

47. I do not understand what the reference to this case being a "pain management case" was intended to convey. If it was intended to suggest that mere pain may not result in incapacity which results in a worker becoming entitled to compensation, then with respect the learned Commissioner was plainly wrong. The learned Commissioner appears to have concluded that if the appellant had on-going pain as a result of her work-related injury, being pain which came on as a result of being at work, it was a matter for her just to put up with it. That is not the law. If the appellant's pain was the product of a compensable injury and gave rise to incapacity, she was entitled to be paid compensation. Incapacity, the product of pain, which in turn is the product of a compensable injury, is not excluded from the operation of the Act. In my view the learned Commissioner erred in law in that he applied the test as being whether the appellant had "substantially recovered from her injury" rather than the correct test of whether the worker had "substantially recovered from the effects of her injury" and erred in law in applying that test to the date of termination rather than the date of Mr Browne's certificate. The errors he made in dealing with the facts flow from those errors of law.

48. I do not consider that the third, fourth and fifth grounds of appeal have any merit, as the learned Commissioner did not so hold. He may have made observations to the effect set forth in those grounds during the course of argument, and those observations may well have conveyed some error of law, but nevertheless his expressed reasons for his decision did not rely upon them. Observations made by a judicial officer during the course of argument do not form part of that officer's reasons for his or her decision unless it is clear that they have been adopted as part of those reasons.

49. I do not consider that the final two grounds of appeal are made out. The Act, s69(4)(b) is only relevant "when the question of the amount that a worker is earning would be able to earn arises". That question arises under s69(1)(b) in the calculation of a weekly payment for partial incapacity. The learned Commissioner was not concerned with calculating a weekly payment for partial incapacity. Such a payment was being made at the relevant time and there was no question as to its quantum. The learned Commissioner was only required to determine whether the respondent ought to be permitted to terminate it.

50. For the reasons I have expressed, the determination made by the learned Commissioner cannot stand and must be set aside. The parties were agreed that if I were to so conclude, the matter ought to be reheard by another Commissioner. Accordingly, the formal orders of the Court will be as follows:

1 That the appeal be upheld.

2 That the order of the Commissioner whereby he dismissed

the reference made to him by the appellant on 23 June 1992

be set aside.

3 That the reference be remitted for re-hearing by a

part-time Workers Compensation Commissioner.