Workers Compensation Update

In this edition, we summarise some recent decisions on section 81A referrals from the Tasmanian Civil and Administrative Tribunal where Page Seager acted for the employer’s insurer.

Background

All three decisions discussed in this edition are judgments on section 81A referrals. A section 81A referral is an application to the Tribunal where the Tribunal is asked to consider if a reasonably arguable case exists. If a reasonably arguable case exists, then the Tribunal orders that compensation (to the worker) can stop.

A reasonably arguable case means a case that has a reasonable chance of succeeding at a final hearing. This means the hearing of a section 81A referrals are interim hearings (as opposed to final hearings).

Stubbs Construction Pty Ltd v HSC [2024] TASCAT 165 (5 September 2024)

What happened?

The worker claimed workers compensation for industrial deafness. In Tasmania, industrial deafness means permanent loss of hearing caused by exposure to industrial noise in a worker’s employment.

The worker’s injury was described as hearing loss due to prolonged exposure to noise in the building industry. The worker provided a medical certificate diagnosing severe bilateral probable sensorineural hearing loss.

What was the employer’s case?

On behalf of the employer, we filed an application to stop workers compensation payments.

The evidence obtained on behalf of the employer justified an argument that the worker’s current employment was not the major contributing factor to the worker’s hearing loss.

The evidence was filed with the application and the Tribunal was asked to consider if there is a chance that the employer could ultimately defend this claim on the basis that it did not cause the worker’s industrial deafness.

What did the Tribunal find?

Mathew Calvert (Lawyer) was successful in arguing the employer’s case and the Tribunal found that the employer had a reasonably arguable case, and its employment may not be the major factor for the worker’s hearing loss.

The Tribunal ordered that compensation to the worker could stop.

The Tribunal reminded us that ultimately workers will have the onus of establishing that they are entitled to compensation at final hearing, and if there is evidence in the preliminary stages to suggest that a worker may not be able to satisfy that test, then Page Seager can advise employers and/or their insurers on their options, including whether they can show that there is a reasonably arguable case as to foundational liability for a claim.

Searson Buck Group Pty Ltd v FQ [2024] TASCAT 198 (31 October 2024)

What happened?

The worker was a registered nurse who was involved in an incident on 27 April 2023 with an aggressive patient. The initial medical certificate indicated right knee pain and anxiety at work, and the worker was diagnosed with a right knee soft tissue injury.

What was the employer’s case?

Medical evidence was obtained on the employer’s behalf and the evidence concluded that the worker had substantially recovered from the effects of the workplace injury and that the worker’s current incapacity was due to pre-existing osteoarthritis, not the workplace injury.

What did the Tribunal find?

Anna Di Carlo (Associate) successfully argued that there was a reasonably arguable case about liability. Although the worker’s lawyer argued about the basis on which the conclusion in the medical evidence was reached, the Tribunal said the said argument involved speculation. Speculation involves dealing with hypothetical scenarios and courts and tribunals do not deal with hypothetical scenarios.

Further, because there was an argument about whether the worker had recovered from the effects of her knee injury, the issue of whether the worker’s injury could be characterised as an aggravation (which is a type of an injury for which a worker can receive compensation) did not matter.

Care Assessment Consultants Pty Ltd Trading As Care Forward v LMN [2024] TASCAT 239 (23 December 2024)

What happened?

The worker had made a workers compensation claim for alleged bullying and intimidation by colleagues. This had caused the worker stress. The employer was given the opportunity to dispute the claim. The opportunity arose of a gap in certification. Gaps in certification are situations when a medical certificate expires, and the next certificate is provided after 14 days. Such situations allow employers to file a section 81A referral.

What was the employer’s case?

The employer disputed that the worker had been bullied or intimidated.

However, the employer also had an alternative argument in that the worker’s stress was because of the employer’s return to work policy. The Tribunal accepted that it is not necessary to challenge all of the worker’s allegations when the employer’s case is that the cause of the worker’s stress is something else entirely.

Here, the argument was that the worker was not happy with the employer’s decision to ask employees to return to working from the office and this was a substantial contributing factor to her stress.

What did the Tribunal find?

Will Geason’s (Associate) application to the Tribunal was successful as the Tribunal found that the employer had a reasonably arguable case about liability as there was a chance that the worker’s stress was substantially because of the decision to require all staff to return to the office after the COVID-19 pandemic.