In this Edition
In this edition, we address:
- Section 81A Referrals – a reminder of the importance of relying upon adequate evidence in support of a dispute of liability – Harriet Frost.
- A decision from the Full Court of the Supreme Court of Tasmania regarding the meaning of a ‘medical question’ and a decision from the TASCAT exploring the meaning of ‘place of employment’ under the Workers Rehabilitation and Compensation Act 1988 – Mat Wilkins, Tom Pilkington and Hari Gupta.
Section 81A Referrals – a reminder of the importance of relying upon adequate evidence in support of a dispute of liability
There have been some recent decisions in the Tasmanian Civil and Administrative Tribunal whereby it has been determined that a reasonably arguable case does not exist. The following cases demonstrate the importance of having sufficient evidence in support of a dispute of liability by way of s81A.
These decisions act as a reminder that despite there being a low threshold for obtaining a reasonably arguable case determination, the onus is on the employer to demonstrate that it has a reasonably arguable case to dispute the claim and that adequate evidence is required to discharge this onus.
The State of Tasmania (Department of Health) Ambulance Tasmania v B [2022] TASCAT 15 (23 February 2022)
Background
This decision of Senior Member Jack involves a claim for an injury to the worker’s left knee which was alleged to have occurred whilst playing touch football with the Ambulance Tasmania social team. This was said to have exacerbated a pre-existing workplace injury from July 2021.
The employer disputed the claim based on a report of Dr David Ruttenburg. Specifically, the employer submitted that it is reasonably arguable that the injury did not arise in or out of the course of the worker’s employment based on Dr Ruttenberg’s observation that “the touch football was not played as part of a work recreational activity“.
Further, the employer argued that had the worker suffered an exacerbation within the meaning of the extended definition of injury under the Act, that symptom exacerbation was not caused by the employment because Dr Ruttenberg had observed that the game of touch football was not work related.
As to the third pathway, Dr Ruttenberg did not believe the worker’s injury was a disease.
Senior Member Jack noted s25(6)(d) of the Act which establishes that an injury does not arise from a worker’s employment if it occurs during a social or sporting activity which takes place away from the worker’s place of employment, except where the worker’s involvement in that activity forms part of the worker’s employment or is undertaken at the request or direction, or with the authority (expressed or implied), of the employer.
Issue in Dispute
The ‘live issue between the parties’ was the relationship between the worker’s employment and his participation in the touch football game.
Discussion
Senior Member Jack held that based on the claim form, the claim is in relation to an injury that occurred during a sporting activity where the worker’s involvement appears to have been with, at least, the implied authority of the employer as part of an employment social team, and likely to be compensable.
Importantly, Senior Member Jack held that an inference that the worker was authorised to engage in the touch football game would be easily countered as part of the employer’s s81A referral by providing some evidence to the contrary.
Senior Member Jack noted that it would have been a relatively simple exercise to provide evidentiary material in support of the s81A referral to refute the suggestion that the worker was authorised to engage in the touch football game.
Whereas the only evidence relied upon on this point was Dr Ruttenberg’s report which stated that “the touch football was not played as part of a work recreational activity“. Senior Member Jack held that there was no basis for this opinion.
Determination
Because no evidence on this point was provided by the employer, Senior Member Jack ultimately concluded that the employer had failed to satisfy the onus to show that it has a reasonably arguable case to dispute the claim.
May Shaw Health Centre Inc v B [2022] TASCAT 13 (18 February 2022)
Background
This decision involves a claim for workers compensation for a psychological condition arising “due to handling of previous workers compensation claim“. The claim was disputed on the basis that the worker did not suffer an injury which is a disease and to which her employment contributed to a substantial degree, within the meaning of s25(1)(b) of the Act.
The only evidence relied upon by the employer was a medical certificate of Dr Mackrill stating that the worker suffered “anxiety and stress from undertaking workers compensation claim“.
Issue
The question was whether undertaking a workers compensation claim can properly be described as part of the worker’s employment.
Discussion
Due to the lack of evidence, Deputy President Clues was forced to infer that the worker had been participating in the workers compensation process and had returned to work. She held that such participation was part of and within the scope of the worker’s employment or at least ancillary or incidental to the scope of the worker’s employment.
Based on that finding, Deputy President Clues determined that the worker’s employment had contributed to a substantial degree to the stress injury for the purpose of s25(1)(b).
Deputy President Clues pointed to s25(1A)(e) which provides a defence to such claims and noted that the employer did not seek to rely upon this defence. Further, the employer provided no evidence to support a finding that the handling of the workers compensation claim for the physical injury was reasonable action taken by the employer under the Act in a reasonable manner affecting the worker.
Determination
Deputy President Clues was not satisfied the employer had discharged its onus of proof. She determined that the employer’s evidence did not support an argument that the worker’s employment was not the major or most significant contributing factor to the worker’s stress injury.
The employer’s s81A referral was dismissed.
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If you have any queries or would like further information regarding these two commentaries, please contact:
Harriet Frost
Senior Associate
T: (03) 6235 5142
E: hfrost@pageseager.com.au
State of Tasmania v Gravina [2022] TASFC 4 (23 March 2022)
The Background
On or about 3 March 2016, the worker made a claim for workers compensation in relation to a low back injury that occurred in the course of her employment. The claim arose from an incident on 26 February 2016 when the worker bent over to pick up something at work, and experienced ‘acute lower back pain and back spasm’. The employer accepted the claim and paid compensation as per the Act.
On or about 13 May 2020, the employer informed the worker that they disputed liability to pay claimed expenses because they were not necessarily incurred as a result of the worker’s injury which was the subject of the claim in March 2016.
The Act says that an employer must pay for all reasonable expenses necessarily incurred by a worker if those expenses are a result of a workplace injury.
As part of the mandatory conciliation process, the employer asked that two medical questions be referred to an independent medical panel (appointed by the Tribunal). This is a course taken when two sides with differing medical opinions cannot agree on a particular issue.
Generally, in civil proceedings, courts and tribunals often deal with questions of fact and questions of law. For example, “was John at the place where the assault took place” is a question of fact. On the other hand, “did the Council owe Sarah a duty of care” is a question of law. Where there are medical issues to be determined, the courts and tribunals are guided by expert witnesses, whose ultimate duty is to the courts and tribunals, in determining those issues.
Returning to the case, the two questions that the employer wanted the medical panel to answer were:
- What was the injury suffered by the worker on 26 February 2016?
- Was the surgery performed by a surgeon on 4 October 2018 a result of that injury of 26 February 2016?
The worker’s view was that these questions were inappropriate.
The Issue in the Tribunal
The Tribunal had to decide if the two questions were medical questions. If the two questions were not medical questions, then a referral to a medical panel could not be made. This is because the Act only allows ‘medical questions’ to be referred to a medical panel.
The Tribunal determined that the two questions were not ‘medical questions’.
In relation to the first question, the Tribunal decided that it required some findings of fact which is, undoubtedly, the Tribunal’s job following a hearing where both sides have had the opportunity to present their case and ask the other side questions.
In relation to the second question, the Tribunal considered it to be a question about whether the symptoms and condition of the worker, which led to the surgery, resulted from the injury in 2016. Accordingly, the Tribunal decided that such a question was a question of fact and law (guided by medical evidence).
The employer appealed the Tribunal’s decision.
The Full Court Decision
The appeal was heard by the Full Court which was made up of Chief Justice Blow and Justices Pearce and Geason.
The Full Court decided that the two questions were ‘medical questions’ and referred the matter back to the Tribunal for determination.
Regarding the first question, the Full Court focussed on, amongst other things, the definition of medical question in the Act. The Act says that ‘medical questions’ relate to the existence, nature and extent of an injury. The Full Court expressed the view that a panel may be commonly required to form its own opinion about issues of fact and opinion which may be contentious issues for the parties.
Regarding the second question, the Full Court said, “… the fact that the medical question may involve disputed facts or competing contentions does not mean that it is not a medical question.” Medical opinion almost always depends on factual assumptions, inquiries or findings. The worker resisted the appeal and said that before the second question could be answered, questions of fact about the worker’s symptoms had to be answered first. The Full Court critically reviewed similar laws in other states and the Act and said that just because a medical question may involve disputed facts, it does not mean that it is not a medical question. In fact, it was found that the Act allows the interpretation that a question requiring determination of the causal relationship between an injury and a consequence, is a medical question.
The Learning Point
This decision tells us that medical questions have a broad meaning. One of the reasons for taking a broad view on the meaning of a medical question is that it facilitates an expeditious and efficient determination of disputes.
It is important to carefully consider differing medical reports and identify the significant issues. This is because a medical panel’s finding is binding on the Tribunal. This means that it is not always prudent to refer medical disputes for determination by a medical panel.
R. v Mondelez Australia Pty Ltd [2022] TASCAT 39 (13 April 2022)
The Background
The worker made a claim for workers compensation in relation to a right ankle injury that occurred in September 2020. The worker was working as a ‘Operator/Maintainer’ at the employer’s premises in Claremont in Tasmania, and generally, the worker’s duties are performed exclusively within the work site. The property occupied by the employer is relatively extensive. There is a substantial perimeter fence surrounding the employer’s manufacturing buildings. The employer’s employees, including the worker, perform their duties within the area surrounded by the perimeter fence. The area of land occupied by the employer extends beyond the perimeter fence. There is a gatehouse that forms part of the perimeter fence. The gatehouse is the security office which borders on the main driveway of the work site.
The Injury
The worker slipped and fell while trying to step back to allow a truck to pass. The worker landed in the gutter and immediately felt pain in his ankle. At the time the worker injured his ankle, he had not yet commenced his shift for the day. He had not entered the gatehouse, he had not clocked on, nor had he reached the area inside the worksite where he undertakes his duty.
The Issue in the Tribunal
Under the Act, compensation need not be paid to a worker who suffers an injury while travelling from home to work (or vice versa). Under the Act, work is referred to as ‘place of employment’.
Defining the place of employment can be tricky. Some small businesses just have one door in and out of the place of employment. Big businesses may have an external fence or yard. Some offices are in multi-storey buildings occupied by many employers.
In this case, the Tribunal decided that because the worker had not yet entered the gatehouse, he had not reached his place of employment.
The Learning Point
The Tribunal took the view that, in this case, the place of employment is the premises or area within which the worker worked each working day. The Tribunal decided that the place of employment is the area of the employer’s manufacturing buildings and other premises contained within the perimeter fence, and to which the worker was able to obtain access only through the gatehouse.
Of course, it is clear from this case that the meaning of ‘place of employment’ is not rigid, and it depends on the circumstances and the relevant worker’s day-to-day duties.
Due to more people working from home, especially in light of COVID-19, the distinction between place of residence and place of employment may be blurred. Further, the question of the degree of control exercised by an employer over a particular part of the property it occupies was not considered relevant in this case, but it could be relevant in other cases.
It appears that identifying the place of employment is not a straightforward exercise.
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If you have any queries or would like further information regarding these two commentaries, please contact:
Mat Wilkins
Principal
M: 0419 106 417
E: mwilkins@pageseager.com.au
Tom Pilkington
Principal
M: 0417 669 478
E: tpilkington@pageseager.com.au
Hari Gupta
Associate
T: (03) 6235 5133
E: hgupta@pageseager.com.au
