Walker, Bernard v J & A Freeman Building Services

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Crawford J,Slicer J,Blow J
• Judgment Date: 08 November 2006
• Docket Number: FCA 46/2006
• Date: 08 November 2006

[2006] TASSC 90

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford, Slicer and Blow JJ

FCA 46/2006

Walker, Bernard

and

J & A Freeman Building Services

Haas Investments Pty Ltd v Viney [2001] TASSC 147 , disapproved.

Aust Dig Workers Compensation [298]

Workers Rehabilitation and Compensation Act 1998 (Tas), ss69(13), 81A.

Workers Compensation — Proceedings to obtain compensation — Preliminary requirements — Claims for compensation — Delivery to, acceptance or rejection of claim by employer — Employer referring notice disputing claim — Whether dispute may relate to the extent of incapacity or amount of compensation payable as opposed to liability to pay compensation at all.

REASONS FOR JUDGMENT

FULL COURT

Crawford J

Circumstances leading to a s81A referral

1 In January 2005, the appellant, an employee of the respondent, claimed compensation under theWorkers Rehabilitation and Compensation Act 1988 (‘the Act’) with respect to a lower back injury suffered at work in November 2004. Upon the basis of a medical report it appears likely that he was employed as a carpenter without formal qualifications and that he was in fact a qualified bricklayer. The respondent disputed liability to pay compensation and referred the matter, presumably under s81A, to the Workers Rehabilitation and Compensation Tribunal (‘the Tribunal’). By consent, the Tribunal determined that a reasonably arguable case existed, presumably with respect to the liability of the respondent to pay weekly compensation at the very least. The appellant then referred his claim for compensation to the Tribunal under s42. Following a defended hearing, the Tribunal found that the lower back injury was causally related to the employment and that the appellant had an entitlement to compensation.

2 When the present dispute came before the Tribunal in February of this year, the Tribunal noted that it seemed that up to the end of September 2005, the appellant presented medical certificates to the respondent that entitled him to the ongoing receipt of weekly payments. On 29 September 2005, the appellant's general medical practitioner, Dr Davidson, provided a medical certificate that certified that he would cease to be incapacitated for work on 1 October 2005. However, when filling in the printed form under the Act, in response to the request that he ‘detail permanent restrictions, if any’, Dr Davidson wrote that the appellant should avoid lifting weights greater than 20 kilograms and standing still for long periods. He also wrote that the appellant should ‘continue with gym/physio as before’.

3 It appears likely that as a result of that certificate, the respondent ceased the payment of weekly compensation, possibly from 1 October. The Tribunal made no finding to that effect but it is to be inferred from its treatment of the respondent's subsequent referral and the failure of the parties to suggest otherwise.

4 On 14 November 2005, Dr Davidson provided another medical certificate. It was not altogether clear, but it seems likely that the doctor was certifying that there had been a recurrence of the previously compensable condition, that the appellant was fit to return to modified duties from 14 November to 31 December 2005 and that he should avoid vertical lifting above 12 kilograms, bending for long periods (10 minutes) and standing for long periods (30 minutes). That certificate came to be received by the respondent, which arranged for the appellant to be assessed by a consultant neurosurgeon, Mr Stuart. In a report addressed to the respondent's solicitors and dated 19 December 2005, Mr Stuart reported having been told by the appellant that his employment by the respondent had been terminated and that he was self-employed, working three to four hours each week. He was contemplating returning to the workforce as a bricklayer but was continuing to experience low back pain and left sciatica. Mr Stuart recommended ‘that he undertake a graduated return to full duties’ and that he was fit to do so, and considered ‘that it would be more appropriate for him to re-enter employment as a carpenter rather than as a bricklayer, as that work involves considerable bending and stooping.’ Other statements in Mr Stuart's report included that ‘active rehabilitation and employer involvement was highly desirable’; that ‘the prognosis in the short-term is poor, but in the long-term is more favourable if he can undergo an active exercise and walking program, as well as a graduatedreturn to work; that ‘if he does not return to work within three months from this date, he should undergo medical review’; that ‘if he does return to work as a builder, I would not place any restrictions on returning to full duties … the present medical evidence is that patients with degenerative disease should continue an active physical lifestyle and continue work without restrictions’; and, with regard to the question whether any restrictions should be placed on the appellant's capacity to work as a builder, that ‘the only restriction I would place on Mr Walker is to avoid lifting with a bent back and instead lift with his knees bent’.

The s81A referral

5 The Court has not been acquainted with any evidence that the appellant claimed further payments of weekly compensation or made any other claim for compensation under the Act. The circumstances in which Dr Davidson's certificate of 14 November 2005 came into the possession of the respondent is not apparent. However, it was received and the respondent exercised its right under s69(13) to treat it as a claim for compensation to which s81A applied. I will say much more about the statutory provisions later. On 1 February 2006, the respondent's solicitors lodged with the Tribunal a formal reference under s81A. It stated some of the history and attached to it were copies of the two certificates of Dr Davidson and the report of Mr Stuart. It stated that the respondent relied upon s69(13) and treated Dr Davidson's certificate of 14 November 2005 as a claim for workers compensation to which the provisions of s81A applied. Paragraphs 7-10 stated:

‘7 On behalf of J & A Freeman Building Services we indicate that they dispute any liability to pay compensation by weekly payments in respect to this claim for compensation.

8 We refer this matter on their behalf to the Tribunal pursuant to Section 81A.

9 We have notified the worker in writing that J & A Freeman Building Services dispute liability to pay compensation and have informed the worker of their reasons for disputing liability.

10 Weekly payments are not being made to the worker.’

6 As to the respondent's reasons for disputing liability to pay compensation, the reference stated:

1. ‘1 Dr Davidson has imposed the following restrictions upon your work capacity “vertical weightlifting to 12kg, avoid bending for long period (10 mins), avoid standing for long periods (30 mins)”, as per his certificate of the 14^th November 2005.

2. 2 Attached hereto and marked with the letter “C” is a report from Mr Stuart, a Neurosurgeon, dated the 19^th December 2005 in which Dr Stuart expresses the opinion that he would not place any restrictions upon Mr Walker returning to full duties.

3. 3 In other words the employer says that there is a clear dispute between Mr Stuart's opinion as to the extent of any incapacity suffered by Mr Walker when compared to the opinion expressed by Dr Davidson in his certificate.

4. 4 It says that the issue of the extent of the worker's capacity for work is a significant issue which can ground a reasonably arguable case determination. It says that the issue of the worker's capacity for work and thus what weekly payment, if any, the worker is entitled to forms the basis of a reasonably arguable case finding.’

Sections 69(13), 80A and 81A

7 Section 81A provides:

‘81ADisputes of liability for weekly payments and other benefits

(1) An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81(1) or benefits under Division 2 of Part VI must, within 84 days of receiving the claim for compensation in respect of the injury to the worker -

1. (a) serve the worker with written notice that the employer disputes liability -

   1. (i) to pay compensation by way of weekly payments; or

   2. (ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury; and

2. (b) inform the worker of the reasons for disputing liability; and

3. (c) refer the matter to the Tribunal.

(2) The referral of a matter to the Tribunal is to be accompanied by -

1. (a) the prescribed fee; and

2. (b) all evidentiary material on which the employer intends to rely at the hearing of the matter.

(2AA) If an employer fails to lodge evidentiary material under subsection (2)(b), the employer may not rely on that material unless the Tribunal otherwise allows.

(2A) Where a matter is referred to the Tribunal under subsection (1), the Tribunal may authorise the Registrar to determine whether a reasonably arguable case exists concerning the liability of the employer to pay-

1. (a) compensation by way of weekly payments; or

2. (b) the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker.

(2B) The Registrar is to advise the Tribunal of the Registrar's determination.

(2C) The Tribunal may make an order giving effect to the Registrar's determination.

(3) The Tribunal must -

1. (a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or

2. (b) if the Tribunal considers that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, order the employer to pay the cost of the benefits from such date as the Tribunal determines; or

3. (c) if the Tribunal considers that a reasonably arguable case exists concerning...