Workers Compensation Update

In this edition, we address:

• A few recent decisions from the Tasmanian Civil and Administrative Tribunal regarding an employer’s liability to pay workers compensation where an injured worker’s injury evolves or progresses from one condition to another – Hari Gupta.

Updates in the Tasmanian Workers Rehabilitation and Compensation Jurisdiction

Among the recent decisions published by the Tasmanian Civil and Administrative Tribunal (Tribunal), there were three consecutive cases which considered a 2003 judgment from the Full Court of the Supreme Court of Tasmania.

What are the three cases?

The three cases from the Tribunal are:

1. Tasmanian Water & Sewerage Corporation Pty Ltd trading as TasWater v C. [2023] TASCAT 111 (13 June 2023).
2. The State of Tasmania (Department of Justice) v W. [2023] TASCAT 118 (20 June 2023).
3. Veolia Environmental Services (Australia) Pty Ltd v E. [2023] TASCAT 120 (21 June 2023).

All three cases dealt with section 81A referrals filed on behalf of the respective employers. A section 81A referral is an application by an employer to the Tribunal to stop workers compensation payments to an injured worker. For an application to succeed, the employer must show a reasonably arguable case exists.

Sometimes such applications are made because the worker is, from the employer’s perspective, either not ‘injured’, or is not a ‘worker’ under the Workers Rehabilitation and Compensation Act 1988 (Act). Most times, such applications are made when the employer has evidence to suggest that the worker’s inability to earn is not, or is no longer, because of work.

In all three cases, the employers were unsuccessful in their respective applications.

In the first case, the Tribunal said it could not consider the employer’s application because the injury for which the claim for compensation was being disputed, was already subject to a previous claim for compensation. The law is that a worker can only make one claim for an injury. A claim can include multiple injuries, but an injury cannot be covered in multiple claims.

In 2003, the Full Court of the Supreme Court of Tasmania delivered a decision in Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134 (Thornton).


What was said in Thornton?

Thornton established and clarified a few principles, but the more notable ones are:

1. A medical certificate alone is not enough to amount to a claim for compensation;
2. A medical certificate is required before the worker is entitled to be paid weekly compensation;
3. A medical certificate accompanying a claim may describe the injury in different terms;
4. The rights and liabilities of the worker and the employer respectively to receive and pay compensation, are crystalised at the time of the suffering of the original injury;
5. The expression “suffering of the injury” is the suffering of “the relevant event”;
6. Once an injury has been suffered, and the liability to pay and receive compensation is established, whatever physical or mental injuries subsequently develop from that can only be considered, as a general rule, as relevant consequences; and
7. It is clear that by defining a claim for compensation for an injury for which the worker has not previously made a claim for compensation, the Act is referring to the injury originally suffered by the worker and upon which their claim is based.

In relation to point 5 above, it is not uncommon for people in the workers compensation industry to use the phrase “injurious event”.

Returning to the three cases; in the first case, the worker injured his right knee while undergoing physiotherapy for his injured left knee. The worker had previously made a claim for the left knee injury. The employer’s argument was that the right knee injury is not related to the left knee injury because it is a separate and discrete injury caused by a completely different incident. However, the Tribunal did not accept this argument and relied on the judgment in Thornton. Perhaps the situation would have been different if the worker’s right knee injury had occurred while he was doing gardening or grocery shopping.

In the second case, the employer argued that the worker had been cleared from a previous stress reaction injury and that there was a new causative element. The worker had made a claim for the previous stress reaction injury. There was a suggestion that the worker had been bullied which caused him to make a new claim, which was for post-traumatic stress disorder. However, the Tribunal did not accept this argument because the medical evidence suggested that the worker’s condition related to the previous injury for which a claim had already been made. As such, the worker could not make a second claim for that injury and consequently, the employer could not dispute the purported second claim. Perhaps the outcome would have been different if the employer’s medical evidence could illustrate that the worker’s post-traumatic stress disorder was substantially due to the alleged bullying which happened after the previous claim was made.

In the third case, the worker, in relying on Thornton, argued, amongst other things, that their psychological condition related to the original physical injury. While the third case was slightly different from the first two cases, the notable thing is that the worker argued that the employer failed to address the psychological condition and the essence of the employer’s case dealt primarily with the physical injury. Further, in this case, unlike the first two, the Tribunal formally found that a reasonably arguable case did not exist.

Learning points

Sometimes the label put on a medical condition by one medical practitioner could be different from the label put on it by another medical practitioner. A doctor’s labelling of a condition may change, as may the diagnosis. Employers should keep this in mind because it should influence their decision-making when they are considering a section 81A application.

In other words, what starts as a physical injury could evolve into issues in pain control or psychological difficulties. It is not uncommon for a worker who suffers a physical injury in traumatic circumstances to also develop post-traumatic stress disorder.

Evidently, it can be quite difficult to identify when a subsequent injury/condition no longer flows from an original injury. We are always happy to discuss such claims.