Workers Compensation Update

In this edition we address:

• Two recent decisions from the Tasmanian Civil and Administrative Tribunal dealing with termination of workers’ weekly payments of compensation – Harriet Frost and Hari Gupta.
• Amendments to sections 27 and 87 of the Workers Rehabilitation and Compensation Act 1988 as per the Workers Rehabilitation and Compensation Amendment Bill 2022 – Harriet Frost and Hari Gupta.

Updates in the Tasmanian Workers Rehabilitation and Compensation Jurisdiction

Late last year, the Tasmanian Civil and Administrative Tribunal (TASCAT) released two decisions regarding section 86 of the Workers Rehabilitation and Compensation Act 1988 (Act):

1. S. v Mondelez Australia Pty Ltd [2022] TASCAT 139 (21 November 2022) (Mondelez).
2. W. v Mosaic Support Services (No 2) [2022] TASCAT 153 (16 December 2022) (Mosaic).

Mondelez and Mosaic reinforce that the onus is on the employer or insurer to prove that a worker should no longer receive weekly payments of compensation.

The decisions highlight the requirement that expert medical opinion relied upon in support of a termination of weekly payments be well-reasoned, not speculative, and worker-specific, to support that the effects of a workplace injury are no longer the main reason for a worker’s incapacity. In other words, the medical expert’s reasoning must be complete, their opinion must be based on facts and the conclusions must be practical rather than theoretical, and general conclusions are unlikely to be relevant.


S. v Mondelez Australia Pty Ltd [2022] TASCAT 139 (21 November 2022)

Background

In July 2019, the worker fell and injured her right hip while employed as a confectioner. The employer relied on the opinion of consultant orthopaedic surgeon, Dr Allen, to terminate weekly payments of compensation on the basis that the worker’s incapacity for work was no longer because of the workplace injury.

The worker relied on the expert evidence of Dr Wilkinson to challenge her employer’s decision to terminate her weekly payments.

On one hand, Dr Allen said the worker had suffered a temporary exacerbation of her pre-existing issues. On the other hand, Dr Wilkinson said the worker suffered a significant aggravation of her pre-existing issue. Further, Dr Wilkinson said that it was unlikely that the worker would be experiencing so much pain solely based on degenerative changes in her right hip.

Usually, where an employer or insurer choose to terminate payments under section 86, they also file a section 88 referral. This gives the employer or insurer a chance to put forth an alternative proposition in case they are unsuccessful in the termination of weekly payments under section 86. It is unclear if this was done in Mondelez.

Decision

TASCAT decided that the worker’s incapacity for work was due to the workplace injury.

The onus of proof was on the employer to establish that the underlying degenerative issues in the worker’s hips were causing her to be incapacitated for work and not the workplace injury.

Learning points

Most workers have some degree of degenerative changes in their skeletal system. However, if employers wish to hold underlying issues as the cause of incapacity for work, then it is important that the medical evidence provides sufficient explanations. For example, in this case, the outcome may have been different if the employer’s medical evidence addressed why the pre-existing issues only affected the worker’s right hip and not both hips.

W. v Mosaic Support Services (No 2) [2022] TASCAT 153 (16 December 2022)

Background

The worker made a claim for workers compensation for a strain to his back in July 2020.

Occupational physician, Dr Drewry, examined the worker and expressed the opinion that he had recovered and any ongoing incapacity for work was due to underlying degeneration in the worker’s spine. The employer also relied on a report from neurosurgeon, Dr Jonathan. Both doctors said that the pre-existing degenerative changes in the spine were the cause of the worker’s incapacity for work, rather than the workplace injury. Both doctors also characterised the worker’s workplace injury as an exacerbation and said the exacerbation would have been temporary.

There was also an application to review the amount paid in terms of weekly payments by way of a section 88 referral based on Dr Drewry’s opinion that the worker was fit for work.

Decision

Just like it did in Mondelez, TASCAT decided that the worker’s incapacity for work was due to the workplace injury. TASCAT held that the evidence supported that it was the incident at work on 6 July 2020 that in fact made the worker’s pre-existing degenerative disease in his spine worse and caused his incapacity for work.

TASCAT was not persuaded by general guidelines on recovery times and considered it to be irrelevant as recovery from injuries is unique to each worker.

As for the section 88 referral, TASCAT was not persuaded by the vocational assessor’s opinion (relied upon by the employer) because it was theoretical in nature as the opinion acknowledged that a number of matters had to be addressed before the theoretical capacity became a reality.

Learning points

Again, if a worker has ongoing symptoms, the medical evidence about the worker’s recovery from the workplace injury must be well-reasoned and must properly explain why symptoms are still being reported. An opinion which says the worker should have recovered after a certain period or would have been in a similar situation even if the workplace injury did not occur, is likely to be considered speculative, and it is unlikely that the Tribunal will be persuaded by such an opinion.

As for section 88 referrals, the following are some useful pointers when seeking a review of weekly payments:

1. The employer must prove that the worker is able to earn despite the injury.
2. Suitable employment is determined by reference to the particular worker i.e., suitable employment depends on the worker.
3. Reasonable access to work in the worker’s geographical location is a relevant factor.
4. The nature of the restrictions (if any) is relevant when considering whether a worker does indeed have the option of working in an alternative role i.e., the available work must realistically be able to accommodate all medical restrictions.

Workers Rehabilitation and Compensation Amendment Bill 2022

The Workers Rehabilitation and Compensation Amendment Bill 2022 (Bill) proposes amendments to sections 27 and 87 of the Workers Rehabilitation and Compensation Act 1988 (Act). The changes came into effect on 1 March 2023.

Section 27 is about presumption as to cause of certain diseases in relation to fire-fighters. Previously, section 27 of the Act said that when a fire-fighter (as it was defined in that section) is diagnosed with a specified cancer and meets relevant criteria, it is presumed, in the absence of evidence to the contrary, that fire-fighting was a substantial contributing factor to the disease. The Act was amended to include a group of workers who were not currently part of the Bushfire Risk Unit of the Tasmania Fire Service. We appreciate that the vast majority of our stakeholders will not be directly affected by this change, but should you have any concerns, please get in touch with us.

Section 87 is about when to stop weekly payments when a worker suffers a workplace injury close to their pension age. The intention behind the change to section 87 is to reduce the disadvantage experienced by older workers by extending the period of time before the age-related cessation provisions apply to those injured close to reaching their pension age. Under these changes:

• where a worker suffers a workplace injury two years (changed from the current 12 months) or more before the worker reaches the pension age, entitlements to weekly payments will cease when the worker attains the pension age; and
• if the injury occurs when the worker is aged less than two years (changed from the current 12 months) before the date on which the person attains the pension age, then entitlements to weekly payments will end on the date two years (increased from the current 12 months) after the injury occurs.

The changes to the Act do not affect the current legal position on what happens when a worker is still working past their pension age and suffers a workplace injury. In such a situation, section 69B will be the guiding section, however, there may be some negating considerations. As such, we encourage you to review such situations with your legal team or contact us to discuss.