Lee v MacMahon Contractors Pty Ltd

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Grant CJ,Southwood J,Riley AJ
• Judgment Date: 29 June 2018
• Neutral Citation: [2018] NTCA 7
• Docket Number: FILE NO: AP 8 of 2017 (21507050)
• Date: 29 June 2018

[2018] NTCA 7

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment Of:

Grant CJ, Southwood J and Riley AJ

FILE NO: AP 8 of 2017 (21507050)

Between:

Mitchell Paul Lee

Appellant

and

Macmahon Contractors Pty Ltd (Abn 37 007 611 485)

Respondent

REPRESENTATION:

Counsel:

Appellant: K Sibley

Respondent: W Roper

AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185 , Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31, Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, Canute v Comcare (2006) 226 CLR 535, Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, Collins Radio Constructors v Day (1998) 143 FLR 425, Davison v Totalisator Administration Board (1988) 56 NTR 8, Disability Services v Regan (1998) 8 NTLR 73, Foresight Pty Ltd v Maddick (1991) NTLR 209, ( JH Constructions Pty Ltd v Davis unreported, SCNT, 3 November 1989), Ju Ju Nominees Pty Ltd v Carmichael (1999) 9 NTLR 1, Morrisey v Conaust Ltd (1991) 1 NTLR 183, Newton v Masonic Homes Inc [2009] NTSC 51, Schell v Northern Territory Football League (1995) 5 NTLR 1, Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32, Van Dongen v Northern Territory of Australia [2009] NTSC 1, Vetter v Lake Macquarie City Council (2001) 202 CLR 439, Wilson v Lowery (1993) 4 NTLR 79, referred to.

Return to Work Act (NT) s 80, s 85, s 104, s 116

Supreme Court Act (NT) s 51

Gageler S, What is a question of law? (2014) 43 AT Rev 68.

WORKERS' COMPENSATION — ENTITLEMENT TO AND LIABILITY FOR COMPENSATION — PROCEEDINGS TO OBTAIN COMPENSATION — PRELIMINARY REQUIREMENTS — CESSATION OF PAYMENTS

Whether notice cancelling payment of weekly benefits valid — no obligation on respondent to provide certification that appellant had ceased to be incapacitated by an injury for which payment of weekly benefits had not been instituted — assertion that secondary or consequential psychological injury was productive of incapacity post-dated the notice of cancellation — Work Health Court fell into error of law by finding that the notice was invalid — consequent error that the question of incapacity determined in accordance with the Counterclaim and that the respondent bore the onus of establishing that incapacity referable to the psychological injury had ceased as at the date of cancellation — Supreme Court correct in finding concerning the validity of the notice but wrong in relation to the consequences of that finding — appeal allowed in part — matter remitted to Local Court for further consideration in accordance with law.

REASONS FOR JUDGMENT

(Delivered 29 June 2018)

THE COURT:

1 The appellant was the worker in proceedings before the Work Health Court. The respondent was the employer in those proceedings.

The facts

2 The appellant injured his back on 21 November 2012. That injury arose out of and in the course of his employment. He submitted a claim form under the Workers Rehabilitation and Compensation Act(NT) 1 on 25 February 2013 which described the injury as “L4/L5 disc irritation” to the “[l]ower back”.

3 The respondent's insurer wrote to the appellant on 15 April 2013 advising that it had accepted liability for an “Irritated Facet Joint” injury which occurred on 21 November 2012.

4 The appellant had in the meantime participated in a return to work program and resumed full duties in January 2013, but subsequently suffered recurrences of pain and intermittent absences from work as a result. He was paid weekly compensation benefits during absences from employment. The medical certifications provided by the appellant's general practitioner in substantiation of his incapacity during those periods all stated that the appellant was suffering from “lumbar back pain”. None of those certifications made reference to any psychological injury.

5 Although no reference was made to psychological injury, the rehabilitation provider engaged by the respondent's insurer to manage the appellant's return to work program had concluded that there might be a psychological component to the appellant's presentation. That is a not unusual presentation in the management of a physiological injury in the workers compensation context. The rehabilitation provider referred the appellant to a pain management clinic and, in turn, to a

psychologist. The appellant attended on the psychologist for four counselling sessions between April and June 2014.

6 The respondent's insurer subsequently arranged for the appellant to be examined by an orthopaedic surgeon and a psychiatrist. By report dated 8 September 2014, the orthopaedic surgeon opined that the strain in the appellant's lumbar spine had likely resolved but that there might be psychological factors impacting on his symptoms and his ability to return to work. By report dated 15 September 2015, the psychiatrist recorded the appellant's complaints of ongoing pain and opined that the appellant suffered from an adjustment disorder with depressed mood which had mainly resolved leaving some mild residual symptoms. In the psychiatrist's opinion, that condition did not give rise to any restrictions on the appellant's duties or hours of work.

7 The orthopaedic surgeon subsequently issued a medical certificate on 9 December 2014 certifying that the worker had ceased to be incapacitated for work as a result of the strain in his lumbar spine and that his incapacity, if any, was due to factors unrelated to the work injury. The respondent's insurer gave the appellant a notice dated 10 December 2014 cancelling payments of weekly benefits pursuant to s 69 of the Return to Work Act (then named the Workers Rehabilitation and Compensation Act). That notice was accompanied by a medical certificate prepared by the orthopaedic surgeon who had reported on the appellant's condition in September 2014.

The proceedings below

8 The appellant commenced proceedings in the Work Health Court on 11 February 2015 challenging the decision to cancel payment of weekly benefits. His Statement of Claim alleged that he sustained a lower back injury and a psychological injury as a result of the injury to his back on 21 November 2012, and that both injuries were aggravated on 12 February 2013. The Statement of Claim pleaded in the alternative that the lower back injury caused or materially contributed to a secondary or consequential psychological injury. The pleading went on to allege that the notice was invalid on the grounds that the medical certification only addressed the physiological back injury and not the psychological injury, and that the reasons did not provide sufficient detail to enable the appellant to understand why weekly benefits for the psychological injury were cancelled.

9 By its Defence and Counterclaim the respondent:

• (a) denied the existence of any psychological injury;

• (b) said that any psychological injury which did exist was not caused by and did not arise out of the appellant's employment with the respondent, and was not productive of incapacity at the time the notice of cancellation was served;

• (c) said that the appellant had not given any notice of psychological injury;

• (d) denied that the appellant had received compensation for anything other than the strain of the lumbar spine; and

• (e) said that the appellant's lumbar spine injury had resolved by 9 December 2014 and that the respondent ceased to be incapacitated for work at or about that time.

10 The appellant was subsequently examined by another orthopaedic surgeon engaged by his solicitors for that purpose. The report of that examination concluded that the appellant had a full range of motion in his lumbar spine, that the appellant had no impairment of the lumbar spine, and that there was no diagnosis or explanation for the ongoing lower back pain of which the appellant complained. In the proceedings before the Work Health Court the appellant did not assert any continuing incapacity as a result of the physiological injury. Rather, the appellant's case was that the notice was ineffective in relation to the secondary or consequential psychological injury.

11 By reasons delivered on 18 March 2016, the Work Health Court made the following findings:

• (a) having initially accepted the appellant's secondary or consequential psychological injury, the respondent did not validly cancel the worker's weekly payments; and

• (b) the respondent had not established that the appellant did not suffer a secondary or consequential psychological injury, or that he had ceased to be incapacitated as a result of that injury at the date his workers compensation benefits were cancelled.

12 In pursuance of those findings the Work Health Court made orders on 28 June 2016 that:

• (a) the notice of decision dated 10 December 2014 was set aside as void;

• (b) the respondent was to make payments of compensation in accordance with the Return to Work Act (NT) from the date of cessation and continuing; and

• (c) the respondent was to pay the appellant's costs.

13 The respondent lodged an appeal in the Supreme Court. In reasons delivered on 3 May 2017, the Supreme Court allowed the appeal, set aside the decision of the Work Health Court, and entered judgment for the respondent.

The grounds of appeal

14 The appellant now brings an appeal from that decision on the following grounds:

• (a) the Supreme Court erred in law in finding that the Work Health Court had asked itself the wrong question, and the Supreme Court erred in its formulation of the correct question;

• (b) the Supreme Court erred in law in finding there was no evidence upon which it could be concluded that the respondent accepted liability to pay workers compensation benefits for incapacity resulting from a...