For the reasons given for allowing ground 1, this ground is made out. I find that the conclusion which the Tribunal must have reached, that a reasonably arguable case concerning the liability of the employer to pay compensation to the worker did not exist, was not reasonably open to it and thus an error of law.
[2]
"(6) The learned Commissioner erred in law by finding, and utilising as part of his reasoning process, that Professor Einoder did not 'identif(y) any factor, outside the worker's employment, which may have caused or contributed to the current status of his right knee' (at [8]) when Professor Einoder was provided with the history that 'Greg advised me that in the preceding months he had done some unaccustomed excessive walking on uneven ground and developed pain in his right knee joint ... (which) gradually became associated with swelling and caused him to limp'."
[3]
As with ground 4, this ground adds nothing. Professor Einoder's report was just part of the evidence, and I have dealt with what was to be made of it in my reasons for allowing ground 1.
[4]
"(7) The learned Commissioner erred in law in failing to determine a reasonably arguable case with regard to the issue of liability on the basis of factual discrepancies in relation to the causation of the worker's injury."
[5]
I have dealt with the issues raised by this ground when dealing with ground 1. The discrepancies in facts recorded in the claim form, the medical certificate and the medical reports of Professor Einoder and Dr Ruttenberg formed part of the reason for allowing ground 1.
[6]
I find that grounds 1, 2 and 5 of the notice of appeal are made out. The appeal is allowed. The Tribunal should have determined under s 81A(3)(c) and (d) that compensation and the cost of benefits not be paid by the employer. However, taking into account the lapse of time since the making of those orders I will hear counsel before determining what orders I should make.
Parties
Applicant/Plaintiff:
Vos Construction & Joinery Pty Ltd
Respondent/Defendant:
Norton-Smith [2016] TASSC 38
Legislation Cited (1)
Rehabilitation and Compensation Act 1988
Cases Cited (17)
Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38 (28 July 2016)
Military Rehabilitation and Compensation Commission v May[2016] HCA 19, considered.
What amounts to a "reasonably arguable case" was considered by Evans J in St Helens Oysters Pty Ltd v Coatsworth[2007] TASSC 90, 17 Tas R 43 at [10]. His Honour first noted that the terms of the section involve an objective assessment of the reasonableness of the employer's arguments, and require the employer to compile and deliver evidentiary material: s 81A(2)(b). His Honour concluded that "a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected". He noted the preliminary nature of the determination which results in interim orders, an observation supported by the terms of s 81A(4) which provide that a tribunal determination under s 81A(3)(a) and (b) that weekly payments or benefits be paid is not to be taken into account by the Tribunal in any other proceedings under that Act. The failure to dispute liability under s 81A(1) to make interim payments does not prevent an employer from fully contesting its liability under the Act by referral to the Tribunal: s 81A(5). Consequently, an interim determination made under s 81A does not bind the Tribunal in future proceedings to the same result, for example on the hearing of a reference under s 42, which may be determined following a fully contested hearing and on the basis of very different evidentiary material.
It is not enough, in a s 81A referral, for the employer to indicate that it simply wishes to put the worker to proof. The terms and history of s 81A disclose a legislative intention that an employer must do more than rely on the contention that the worker may not ultimately be unable to discharge the onus of proof. Because s 81A(2)(b) requires an employer's referral to be accompanied by all of the evidentiary material on which the employer intends to rely at the hearing, the employer bears an onus of proof of establishing a reasonably arguable case: Skilled Group Limited v Anning[2015] TASSC 18; GIO Australia Limited v Lovell[2000] TASSC 75 at ; The Act does not require that the employer's case about liability be strong or compelling, but the case that the claim may ultimately be rejected must be reasonably arguable. The use of those words in the legislation means that the answer to the question posed by s 81A will be a matter for assessment and judgment of the Tribunal, determined objectively, on the evidence before it in each case.
Section 49 deals with the procedure of the Tribunal. It applies to all proceedings before the Tribunal, not just a referral under s 81A. In a proceeding before the Tribunal, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit: s 49(1)(a). Proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and proper consideration of the matters to be resolved permit: s 49(1)(b). The Tribunal is to act on such evidence as is placed before it after all of the parties have been given a reasonable opportunity to be heard: s 57(1).
Section 81A(6) includes an additional provision of a procedural nature which, for the purpose of the section, enables the Tribunal or the Registrar to conduct any hearing the Tribunal or the Registrar considers necessary by any appropriate means including, but not limited to, a telephone conference. That provision demonstrates an intention that the Tribunal may exercise a high degree of procedural flexibility in the resolution of an employer's reference under s 81A.
Section 63 provides for a right of appeal to this Court if any party to a proceeding before the Tribunal is aggrieved by a determination or order of the Tribunal, but the right is confined to appeals "in point of law". If the material before the learned Commissioner necessarily leads to a conclusion that a reasonably arguable case did exist, then he would have made an error in point of law: St Helens Oysters Pty Ltd v Coatsworth (above) at [15]; Protective Security Pty Ltd v Bedelph[2004] TASSC 128, 13 Tas R 354 per Crawford J at [22]-[28]. If, on the material before the Tribunal, reasonable minds could differ as to the existence of an arguable case, a conclusion one way or the other could not, of itself, be regarded as indicating any error of law. If the conclusion reached by the Commissioner was reasonably open, then an error in point of law has not been established: Burrage v Rural Press Limited[2013] TASSC 43.
There may also be an error in point of law if there is jurisdictional error.
See also the passages in their Honours' reasons in Kennedy Cleaning Services Pty Ltd at 298-299 [35] and 300-301 [40]. Their Honours earlier explained at 296 [28] that because of the disjunctive formulation in the phrase "out of or in the course of employment" many injuries "are compensable simply because they have occurred during the protected period of work hours, although they have no other connection with the worker's employment". They continued at 300 [39] by pointing out that if a physiological change in the sense described "happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the workers' employment".
There is no dichotomy between an injury which is a disease and an injury which is not a disease. A worker is entitled to recover if he or she falls within either head of recovery: Zickar v MGH Plastic Industries Pty Ltd(1996) 187 CLR 310 per Kirby J at 351, applied by McHugh, Gummow and Hayne JJ in Kennedy Cleaning v Petkoska at 310 [73].
In the event that the evidence does not establish an injury which is a disease or an injury in the primary sense, it may then be necessary to ask whether the case is one involving a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease within the operation of par (b) of the s 3 definition. The concept of a par (b) injury was considered in detail by Porter J in Long v Kmart Australia Ltd[2016] TASSC 6. That case concerned a pre-existing disease, and not a pre-existing injury, but many of his Honour's observations, and the authorities he referred to, are applicable to both. In Tasmania, the terms "recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease" were introduced into par (b) of the definition of "injury" by amendment in 2001. The terms are commonly used in workers' compensation legislation in Australia. Judicial consideration of the terms is more commonly by reference to pre-existing disease rather than pre-existing injury. The terms recurrence, aggravation, acceleration, exacerbation and deterioration, when applied to a pre-existing injury, mean something which results in an increase or intensification of symptoms: Federal Broom Co Pty Limited v Semlitch[1964] HCA 34; per Kitto J at 634 where his Honour considered what amounted to exacerbation of a disease. A recurrence, aggravation or exacerbation may arise as a result of external stimuli, or as a result of natural progression of the condition or symptoms: , at - .
That statement reads as a final determination of a question of fact. The Tribunal's function was not to make final findings of fact. Rather, it was to determine whether there were reasonable arguments about the employer's liability; that is, whether it was reasonably arguable that the worker did not suffer a recurrence of a pre-existing injury. The Commissioner's earlier reference to the relevant passage from the decision of Evans J in St Helens Oysters v Coatsworth makes clear that he properly understood his function, and he was required to make his own assessment of the strength of the employer's case. That the Commissioner expressed the finding of a recurrence as he did may mean that he was not satisfied that the employer may avoid liability on the basis that there was no recurrence of the 2010 injury. But he did not say that, and he did not address any of the other evidence which was relevant to the employer's arguments about that question. At the end of the reasons, the Tribunal's conclusion was expressed in terms only that the Commissioner was not satisfied that the employer may be able to avoid liability on the basis that the worker's injury was not contributed to by employment to the requisite degree. It may be that the Commissioner incorrectly considered that the contribution of employment was the only disputed aspect of the claim. By ground 8, the employer contends that the Commissioner, by mischaracterising the issues raised by the reference and failing to consider and determine whether there was a reasonably arguable case that the worker did not suffer a recurrence, thereby made an error in point of law in the nature of jurisdictional error of the type identified by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323 at [74]:
The difficulty of distinguishing between jurisdictional and non-jurisdictional error was recognised by the High Court in Craig v South Australia[1995] HCA 58; (1995) 184 CLR 163 at 176-180 and in Kirk v Industrial Court (NSW)[2010] HCA 1, 239 CLR 531. It has been suggested that different principles apply to courts on the one hand and inferior tribunals on the other: Craig at 176-177 and Kirk at 572 [67]-[69]. At least part of the reason for the different approach is that a court is constituted by persons with legal training entrusted with authority to decide questions of law, contrasted with the lack of authority of an administrative tribunal, in the absence of contrary intent in the statute establishing it, to authoritatively determine questions of law, or to make a determination otherwise than in accordance with the law. Difficulties arising from the notion of what is "authoritative" were discussed in Kirk at 573 [69]-[70], and the problem of drawing a distinction between a court and an administrative tribunal is apparent in this case. The Tribunal is not a court, but it may only be constituted by commissioners who are legal practitioners of more than five years' standing: ss 17A, 17B, 18 and 19. The Tribunal's function is to determine all claims and matters referred to under the Act and to exercise all of the powers conferred and duties imposed under the Act: s 20. It has jurisdiction to perform all of those powers and duties, and proceedings for compensation may only be brought before the Tribunal: s 23(2). In those circumstances, I think that statements of the law about the principles to be applied to inferior courts should be applied in this case. Accordingly, the above passage from Yusuf concerning a decision of an administrative tribunal is to be read in light of the following. In Re Refugee Review Tribunal; Ex parte Aala[2000] HCA 57, 204 CLR 82, Hayne J said at 141 [163]:
This ground raises more than one issue. Some can be dealt with quickly. The first is the reference to "new rights and liabilities". Whether the claim gave rise to new rights and liabilities is irrelevant to the determination of the question raised by this ground. Counsel for the employer also made submissions about whether different insurers may be liable, and that different compensation caps, limits and rates may be affected. To those considerations I would add that different employers may be involved. Those matters are likewise irrelevant. If the worker suffered a recurrence of a pre-existing injury to which employment was the major or most significant contributing factor, then it was a compensable injury. The matters to which I have referred follow from that result but are not determinative of it. This and other grounds refer to whether a fact is "contestable" or "uncontestable". The words are not used in the legislation. What is to be determined is whether a reasonably arguable case exists concerning the liability of the employer to pay compensation.
Because, as I have explained, there could only have been a reasonable argument about every other basis for the employer's liability to pay compensation under the Act, resolution of this appeal distils to the question of whether it was reasonably open for the Tribunal to find that the employer did not have a reasonably arguable case about whether the worker suffered a recurrence of a pre-existing injury, contributed to by employment, to the requisite degree. Were the claim to be referred for a full hearing, liability for compensation is not established on this basis unless the worker establishes both a recurrence of a pre-existing injury and the contribution of employment to the recurrence to the requisite degree. Whether a reasonably arguable case exists is to be considered in light of all of the issues and competing contentions, but both elements are essential to liability.
Whether there is a recurrence, aggravation, acceleration, exacerbation or deterioration is a question of fact: Adelaide Stevedoring Co Ltd v Forst[1940] HCA 45; (1940) 64 CLR 538; Federal Broom Co Pty Limited v Semlitch per Windeyer J at 637. It is important to remember that the Tribunal was not to make final determination of whether there had been a recurrence. The Tribunal was required to consider whether the employer had a reasonably arguable case. In doing so, assessment of the strength of the competing factual contentions open on the evidence was necessary so that the Tribunal could exercise its function. There was ample evidence from which to conclude that the worker's right knee symptoms had become worse. However, I think that the evidence before the Tribunal compelled the conclusion that it was reasonably arguable that the worsening of symptoms was not a recurrence of a pre-existing injury. When concluding that the worker had suffered a recurrence, the Tribunal referred only to the claim form and Dr Raman's certificate. Other material raised other reasonable possibilities. The first and most obvious alternative is that the worker had suffered a fresh work injury in the primary sense. That was what the worker claimed. Dr Ruttenberg's primary opinion was to that effect. Of course, this would have given rise to a compensable claim in any event. As I have already explained, if it was a fresh injury in the primary sense, there was no need to resort to the concept of recurrence.
Because of the meaning of injury to which I have referred, the terms recurrence, aggravation, acceleration, exacerbation and deterioration, when applied to a pre-existing injury, could only refer to some circumstance causing an increase or intensification of symptoms, but not amounting to the type of physiological change which itself amounts to injury in the primary sense. If something amounts to an injury in the primary sense, then resort to par (b) of the extended definition is unnecessary. In these reasons I may, on occasion, refer to the five terms used in the definition by the shorthand term "recurrence" or "aggravation", although the words used in par (b) are not synonymous, have different shades of meaning and are not mutually exclusive: Federal Broom Co Pty Limited v Semlitch per Kitto J at 634; Long v Kmart Australia Ltd at [47]. If the evidence establishes a recurrence, it does not give rise to a liability to pay compensation unless the worker's employment is the major or most significant contributing factor to the recurrence. In that case, it must be possible to identify some incident or state of affairs to which the worker was exposed in the performance of his employment which was the major or most significant contributing factor to the recurrence: Federal Broom Co Pty Limited v Semlitch per Kitto J at 632.
By extension of the pre-existing disease authorities, the result of the combined operation of par (b) of the definition of "injury" in ss 3 and 25(1)(a), is that if a worker is suffering from a pre-existing injury, however contracted, and if the employment contributed to an aggravation or recurrence to the requisite degree, then there is an injury within the meaning of the Act: Amalgamated Wireless (A/Asia) Ltd v Philpott[1961] HCA 31; (1962) 110 CLR 617 at 625; Darling Island Stevedoring and Lighterage Co Ltd v Hankinson[1967] HCA 10; (1967) 117 CLR 19 at 26. It is the contribution of the employment to the recurrence of the pre-existing injury which is to be assessed, not the effect of the original injury. In an appropriate case, the contribution of the natural progression of effects of the pre-existing injury is to be taken into account: Cook v Midpart Pty Ltd at [39]-[49], applied in Long v Kmart Australia Ltd at [67].
It may be that, although he did not say so, the Commissioner was intending to convey that the employer should not escape liability to make interim payments if, whether the claim was viewed as for an injury or a recurrence, compensation was payable. In other words, that the worker should not fall between the two scenarios if one must be true, and that taken overall, it was not reasonably arguable that the worker did not suffer either an injury in the primary sense or a recurrence of a pre-existing 2010 injury. However, there were reasonable arguments about whether there had been an injury in the primary sense and other reasonably arguable possibilities inconsistent with a recurrence. Although Professor Einoder's report indicates that surgical removal of part of the meniscus makes the knee "more susceptible to further injury of the articular cartilage", his opinion that the worker's "current problem" is related to the 2010 problem is qualified by there being an absence of "any other significant incident". There was evidence that the worker had been asymptomatic following his recovery from the surgery performed by Mr Butorac in 2011, and Mr Butorac's report of 22 March 2011 indicated that following the surgery the worker "would not be particularly predisposed to recurrence of the problem". Dr Ruttenberg diagnosed the worker as suffering right medial meniscal pathology, but "in the context of what may well be degenerative change affecting the medial compartment of the right knee joint". He described what "may be" degenerative change affecting the right knee, but he said it was "plausibly secondary to the surgery", which may also "predispose to the development of medial compartment arthritic change". The employer submits that a vulnerability or pre-disposition points to the proposition that the re-emergence of symptoms in 2014 may not be a recurrence of the 2010 injury.
Whatever conclusion is reached about the fact of recurrence, the evidence compelled the conclusion that the employer had a reasonably arguable case concerning the second element essential to liability for recurrence. It must be shown that a recurrence, if established, is contributed to by the worker's employment to the requisite degree. Again, subject to my earlier comments about the Tribunal's function in a s 81A reference, it is a question of fact: Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452. In that case, Kirby P (as he then was) said, with the agreement of Sheller and Powell JJA, at 463: