//
[2005] SAWCT 93
General information, not legal advice.
Workers Compensation Tribunal (SA)
2005-11-04
President Judge P
Original judgment source is linked above.
1 This is an appeal from the decision of a learned Deputy President made on a preliminary point taken by counsel for the worker as to the validity of the exempt employer's notice discontinuing weekly payments pursuant to s 36(1)(b) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").
2 The learned Deputy President upheld the preliminary point, determining that there was no material before the exempt employer upon which it could have been satisfied that the worker had ceased to be incapacitated for work by his compensable disability. He thus concluded that the exempt employer's notice of 26 February 2004 was a nullity, and ordered the reinstatement of the worker's weekly payments to date and ongoing.
3 The exempt employer appeals this summary determination of the matter. It contends that the learned Deputy President's finding that "The material before the exempt employer was all one way on the anterior matter" (par 16) was wrong and unsustainable on the evidence. To the contrary, it contends, the material before the exempt employer could well be read as supporting the conclusion that the worker was no longer incapacitated by his compensable disability but had a continuing partial incapacity by reason of a degenerative condition unrelated to his employment. That this or some other conclusion than that drawn by the learned Deputy President was open on the evidence was, it was argued, sufficient to show that the matter ought not have been determined in a summary way without hearing any evidence.
4 The respondent worker rightly concedes that the appeal gives rise to a question of law.
5 It is a well-established principle that summary relief should only be granted when there is no real question of fact or law to be determined. It is not appropriate where the evidence is contested and it is conceivable that contra evidence might be accepted, or where the conclusions to be drawn from the evidence are open to reasonable argument: Webster and Another v Lampard [1993] HCA 57; (1993) 67 ALJR 886; WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Harris Scarfe Ltd) v Smith [2003] SAWCT 50; Garton v State of South Australia JD 32/1998. Parties ought not readily be denied the opportunity to present evidence and argue their case on the merits.
6 It is not in issue that the relevant material before the exempt employer in February 2004 comprised a certificate of Dr R Bauze dated 6 February 2004 and two reports of Dr Bauze dated 6 August 2003 and 6 February 2004. The contents of the certificate and later report were set out in full at pars 5 and 6 of the learned Deputy President's reasons for judgment.
7 The learned Deputy President summarised the effect of these materials at pars 7 and 8 of his reasons for judgment:-
"7. I summarise the effect of this material as follows. The exempt employer's 'satisfaction' was based upon the opinion of Dr Bauze (TB 8). There is no other material specified for the basis. The certificate of Dr Bauze commences with an acceptance of the fact that the worker suffered injury to his thoracic and cervical spine in employment (TB 289). The certificate states the worker had ceased to be incapacitated for work as a result of the alleged injury. Also before the decision maker was the medical report of 6 February 2004. The information it contained was read before the making of the determination of 26 February 2004.
8. Any reasonable examination of that report discloses two things. Firstly that in Dr Bauze's opinion the worker's injury was the product of degeneration and there was no evidence of injury. In the given context, this is a direct contradiction of the assumed premise in the certificate (TB 289). The second feature is that the worker rather than having ceased to be incapacitated for work, as stated in the certificate, remained incapacitated. He was not fit to lift anything heavier than 7 kgs or thereabouts and certainly not lifting such from floor to bench height. Indeed, the ultimate paragraph of the report suggests Dr Bauze understood he was being asked to consider the suitability of the worker's current employment in the mailroom rather than the issue of whether he had ceased to be incapacitated for work as a result of the injury. The material being cited as the 'basis' (TB 8) is such that the exempt employer could not be 'satisfied'. Of course the exempt employer or Corporation is required to proceed by a rational and transparent process. This indication of legislative expectation is found inter alia in s 36(3) of the Act: see Brooks v WorkCover/CGU Workers Compensation (SA) Pty Ltd (Extrastaff Pty Ltd) [2005] SAWCT 44."
8 The learned Deputy President's findings reflect one interpretation of the materials, but other interpretations are readily open. The learned Deputy President postulates a "direct contradiction" between the assumed premise in Dr Bauze's certificate that the worker suffered a compensable disability to his cervical/thoracic spine and Dr Bauze's statement in his report that there was no evidence of injury. However, an alternative interpretation of Dr Bauze's report would suggest that it was his opinion as at 6 February 2004, following re-examination of the worker on that date and review of x-rays and MRI scans that had come to hand, that there was, as at February 2004, no evidence of a compensable work injury. That is not to say that there never was a compensable work injury. We have difficulty in seeing any "direct contradiction" as suggested by the learned Deputy President.
9 The learned Deputy President infers in par 8 a further contradiction between Dr Bauze's acknowledgement in his report of some limitations on the worker's capacity for work and Dr Bauze's certificate certifying the worker to have ceased to be incapacitated for work. However, Dr Bauze's certificate certifies the worker not to have ceased to be incapacitated for work, but to have ceased to be incapacitated for work as a result of the alleged injury, that is to say, as a result of the accepted compensable disability.
10 An alternative interpretation of Dr Bauze's reports and certificate would indicate that it was his view that as at February 2004 the worker was no longer incapacitated by reason of his compensable work injury, but that he had ongoing limitations on his capacity for work by reason of a degenerative spinal condition unrelated to his employment.
11 Beyond his findings in par 8 the learned Deputy President does not indicate on what basis he came to the conclusion he did in par 16 that "The material before the exempt employer was all one way on the anterior matter". Likewise, there is no further indication as to the basis for his reference in par 17 to "an absence of the 'anterior matter' enabling the exempt employer to be 'satisfied' ". It is difficult to see how these conclusions could have been drawn when it was open on the materials before the exempt employer to conclude that there was evidence to support it being satisfied that the worker had ceased to be incapacitated for work by his compensable disability. For the learned Deputy President to have in effect determined that that conclusion was beyond argument was not open on the materials, was wrong and involved a misapplication of the well-established principles relating to summary dismissal applications.
12 Mr Doyle for the respondent submitted that the learned Deputy President's decision could be upheld on a basis not adopted by the learned Deputy President, namely, that Dr Bauze had not had any regard to the worker's lumbar spine when the worker's "back injury was a critical component of the injury in respect of which the worker was in receipt of payments of compensation".
13 We do not think there is any merit in this submission. Given that the point was argued before the learned Deputy President but not taken up by him, it might be inferred that he too saw little merit in it.
14 It is not clear from the materials before us what exactly was the disability that the exempt employer accepted as compensable. The asserted injury was "back pain" and the affected body parts the "shoulders and lower back". The exempt employer's determination refers only to "an injury which occurred on 21/12/1993".
15 Prescribed medical certificates were presumably provided to the exempt employer over the ensuing years. They were not before us, nor it seems before the learned Deputy President.
16 On the materials before us, it is not evident that a lower back injury was "a critical component of the injury in respect of which the worker was in receipt of payments of compensation", as asserted by Mr Doyle.
17 Moreover, the contention that Dr Bauze did not have any regard to the worker's lower back is unfounded. In his first report of 6 August 2003 Dr Bauze noted the worker's complaint that his main problem was his upper back, and he expressed his opinion that "there is no significant abnormality of his lumbar spine and no evident injury that he may have sustained in 1993". In his report of 6 February 2004 Dr Bauze specifically said that he made no reference to the worker's lumbar spine because that did not appear to be a factor disturbing the worker's employment, that is to say, the worker's capacity for work.
18 Mr Doyle's submission in any event falls foul of rule 30, sub rule (3) of the Workers Compensation Tribunal Rules 2005 which provides:-
"If the respondent contends that the appeal should be dismissed for reasons different to those contained in the decision being appealed, the respondent shall file and serve at least five business days before the appeal is to be heard, a form entitled 'Notice of Alternative Contentions'."
19 No such Notice of Alternative Contentions was filed or served on behalf of the worker. Irrespective of this procedural deficit, however, we reiterate that we see no merit in Mr Doyle's submission.
20 The appeal is allowed. The learned Deputy President's summary disposal of the dispute between the parties on the basis of his finding that the exempt employer's notice of 26 February 2004 was a nullity and his consequent order for the reinstatement of the worker's weekly payments are set aside.
Transadelaide
Alympic [2005] SAWCT 93
(1993) 67 ALJR 886