Workers Compensation Update
In this edition, we summarise a recent decision from the Tasmania Civil and Administrative Tribunal (TASCAT) where Page Seager acted for the Employer’s insurer. We also highlight an important change to TASCAT’s Practice Directions that affects the filing of documents.
KC v Devonfield Enterprises Inc [2025] TASCAT 65
The Worker claimed workers compensation in May 2023 for a back injury. The claim was accepted and the Worker received weekly payments of compensation from the Employer.
The Worker made a claim for a primary psychological condition in August 2024 which was disputed under section 81A of the Workers Rehabilitation and Compensation Act 1988 (Act), and payments in relation to the primary psychological claim were ceased.
The Worker’s payments of compensation and medical expenses continued in respect of his back claim.
In May 2024, the Worker’s earnings exceeded his weekly compensation rate, therefore his weekly payments of compensation were terminated under section 86(1)(b) of the Act.
The Worker subsequently presented certificates of incapacity in the latter half of 2024. The Employer relied on the termination under section 86(1)(b) and did not recommence weekly payments. The Worker’s lawyer filed a section 42 referral with TASCAT seeking a determination of the Worker’s entitlement to weekly payments.
A recent hearing occurred to determine the ambit of the issues under the section 42 referral as a result of an agreement not being reached at the preceding conciliation conference.
Key legal issues
There were two key legal issues that TASCAT had to consider before the matter progressed to a final hearing in June 2025:
- The ambit of issues to be determined on the referral; and
- Whether a summons filed by the Employer should be issued.
The scope of the section 42 referral
Counsel for the Worker submitted that the scope of the referral was limited to whether the termination of payments under section 86(1)(a) or (b) of the Act was lawful.
In the alternative, counsel for the Employer submitted that at the final hearing, TASCAT was open to make determinations as to:
- Whether the Worker was incapacitated for work;
- Whether that incapacity was total or partial;
- The cause of that incapacity;
- The rate of compensation that the Worker was entitled to; and
- The period or periods of which the worker was entitled to received payments of weekly compensation.
Deputy President Richard Grueber contrasted the differences between a section 86(1)(c) termination under the Act (where a Worker has wholly or substantially recovered from the effects of the injury, or the Worker’s incapacity is no longer wholly or substantially due to the injury) with a section 86(1)(b) termination (where the Worker can continue to have partial incapacity, but has earnt more than their entitlement to weekly payments of compensation).
Deputy President Grueber found that irrespective of whether there was a lawful termination of weekly payments under section 86(1)(b), issues concerning the extent of a Worker’s capacity may still arise and be relevant.
Ultimately, the Deputy President confirmed that the scope of the referral included all issues raised by the parties which was what counsel for the Employer had submitted at the outset.
The test for summons clarified
Ahead of the section 42 hearing, the Employer issued a summons for the Worker’s GP records on the basis that they were directly relevant to the section 42 referral and the question of capacity.
The Worker opposed the summons on the basis that the GP records were irrelevant and amounted to “fishing”.
As Deputy President Grueber had agreed that the scope of the referral may include the issue of the Worker’s capacity and the cause of any incapacity, it was determined that the GP records were relevant to those issues, and an order was made to issue the summons.
Key points
The scope of a section 42 referral in response to a termination of weekly payments under section 86(1)(a) or (b) is unlikely to be limited to only whether the termination of weekly payments was unlawful assuming that the Employer raises these issues early on in the dispute.
It is open for TASCAT to make a determination as to whether the Worker has any incapacity for work, the cause of that incapacity, the degree of their incapacity, and the rate and period at which the Worker is entitled to payments of weekly compensation, if any.
A summons will only be issued where the materials sought on the summons are relevant to the scope of issues on the referral.
Amended TASCAT Practice Directions
The General Division Personal Compensation Stream TASCAT Practice Direction 1 provides instructions as to how referrals are to be filed. That is, via post, leaving them with reception, or sending them via email to the workers compensation TASCAT email address.
We are aware of a recent issue where a referral was electronically filed with TASCAT by sending it to the relevant email address, but due to privacy settings which were applied to the filing email, this was not received by TASCAT.
We understand that TASCAT’s email address which is used to file referrals is a shared inbox, and that it does not recognise emails which have privacy settings applied to them.
The obvious risk in filing a referral via email and marking it private was that the referral may not be received by TASCAT within the legislative timeframe. Depending on the circumstances, it was possible to successfully argue that any such referrals were received within the necessary timeframes.
However, TASCAT has recognised the issue regarding emails with privacy settings being used to file referrals and have amended Practice Direction 1. It now reads that “email settings must not be set as “private” or “confidential”.
Given that this is now part of the Practice Directions, if any referrals are filed electronically with privacy settings in place on the emails, not only will they not be able to be received by TASCAT, but they will also be not filed in accordance with the Practice Directions, and as such it will not be possible to argue that the referrals were received by TASCAT within the legislative timeframe.
Therefore, it is now more important than ever to ensure that when filing referrals electronically, any privacy settings should be removed from emails in order for it meet the requirements for filing. TASCAT has confirmed that it will confirm receipt of a referral. If this is not received, enquiries should be made with TASCAT.
