Workers Compensation Update – 29 July 2021

In this Edition

In this edition of our case commentaries and legal updates, we summarise two recent decisions from the Supreme Court of Tasmania which dealt with appeals from the Workers Rehabilitation and Compensation Tribunal, and we comment on the latest version of the regulations in the Workers Rehabilitation and Compensation jurisdiction.

Decisions from the Supreme Court of Tasmania

The two appeals to the Supreme Court were unsuccessful. Both appeals were against the Chief Commissioner’s finding that there was no reasonably arguable case. In the Workers Rehabilitation and Compensation jurisdiction, an employer can apply for an interim order to stop workers compensation on the basis that it is reasonably arguable that ultimately, the employer would be able to successfully defend the claim for workers compensation.

The appeals could only succeed if an error of law was established. To show an error of law, the party appealing must show that on the evidence before the Tribunal, only one conclusion was open to it and the Tribunal did not reach that conclusion but reached another conclusion. One of the appeals was heard by Pearce J and the other was heard by Blow CJ, and both judges decided that the Chief Commissioner made no error of law.

The main takeaway is that although the ‘reasonably arguable case’ threshold is lower than standards like ‘beyond reasonable doubt’ and ‘balance of probabilities’, careful thought and legal skill is needed to identify whether a ‘reasonably arguable case’ exists. Further, should an employer be unsuccessful in establishing a ‘reasonably arguable case’, the choice to appeal it should be made after a thorough review of the decision. It is not enough to say that the Tribunal could have decided otherwise.

If you have any queries or would like further information regarding this update, 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 5163
E: hgupta@pageseager.com.au

 

Tassal Operations Pty Ltd v Lese [2021] TASSC 22 (8 June 2021)

Background

  • Mr Lese had been employed by an aquaculture company since 2012 and was an offshore harvester. His duties included tying and untying fish harvest vessels, pulling seines (a type of net), and harvesting fish.
  • Mr Lese made a claim for compensation in April 2020 for a right shoulder strain. The strain was said to have occurred on 20 February 2020, but a workers compensation medical certificate referred to 27 February 2020.
  • The employer’s medical evidence showed that Mr Lese may have a pre-existing disease known as a spondylosis.
  • Mr Lese’s employer decided to apply for an interim order to stop workers compensation based on four grounds.
  • The first ground was that Mr Lese did not give notice of his injury as soon as practicable.
  • The remaining three grounds were that Mr Lese did not suffer an injury on 27 February 2020, or a disease or the worsening of a pre-existing injury or disease that was caused by Mr Lese’s employment.
  • Generally, these are valid grounds for such applications, known as section 81A referrals in this jurisdiction.
  • As for the requirement to give notice, in a section 81A referral, an employer must also show that the worker’s failure to give notice as soon as practicable was not because of a mistake and that the employer suffered prejudice. In this case, the Chief Commissioner found that Mr Lese’s failure to give notice was because he mistook the severity of his injury. The employer also did not give evidence of prejudice.
  • As for the other three grounds, the Chief Commissioner found that Mr Lese was not claiming compensation for an injury on 27 February 2020. Further, she found that the employer’s medical evidence did not sufficiently show that Mr Lese’s employment did not cause the injury or the worsening of the pre-existing disease.
  • The employer’s medical expert prepared another report after receiving some correspondence but only the second report was filed. The correspondence which the second report was based on, was not filed. The Chief Commissioner gave no weight to the second report.
  • The Chief Commissioner found that there was no possible alternative explanation for Mr Lese’s incapacity for work.
  • As such, it was found that there was no ‘reasonably arguable’ case.

What did the Supreme Court say?

  • First, the notice ground was not raised in the appeal.
  • Next, the employer’s argument was that the evidence before the Tribunal allowed a finding of a ‘reasonably arguable case.’ The Supreme Court had to decide if it was open to the Chief Commissioner to find that the employer’s case was not reasonably arguable.
  • Pearce J said that this was one of the cases where another conclusion was open to the Tribunal (i.e., a reasonably arguable case existed). Although the Honourable Judge could have formed a different view, it does not mean the conclusion reached by the Chief Commissioner was not open to her. As such, there was no error of law.
  • Finally, Pearce J found that the Chief Commissioner was entitled to give whatever weight she wanted to the second report, and she had not actually disregarded it.
  • The appeal was dismissed.

What can we learn from it?

  • It is important to ensure that medical evidence filed in support of section 81A referrals adequately show why an employer says that ultimately it will be able to successfully defend the claim.
  • Further, while it was not discussed in the Supreme Court, this case reminds us that it is not sufficient to simply say that a worker has not given notice of his or her injury as soon as practicable. Section 81A referrals must also show that a worker will not be able to rely on reasonable causes to justify the failure to give notice.
  • Finally, this case seems to suggest that it is not enough to simply say, by relying on medical evidence, that employment is not a major or most significant contributing factor. It appears that the basis of that assertion needs to be provided to the Tribunal. This will ensure that sufficient weight is given to the basis of the assertion (e.g., medical reports).
  • As Pearce J said, reasonable minds could differ in the conclusion reached, but that does not mean the Chief Commissioner made an error of law.

Link to Case

 

State of Tasmania v Stirling [2021] TASSC 25 (24 June 2021)

Background

  • Ms Stirling is employed as a supervisor in the finance section of the Department of Health.
  • One of her subordinates who Blow CJ referred to as Carol, had personality differences and these differences lead to Ms Stirling making a claim for adjustment disorder.
  • In her claim form, Ms Stirling said that a staff member verbally abused her with “raised voice and pointed finger”, and the staff member also applied for a restraint order, there was a court appearance and that the allegations (presumably in the restraint order application) were lies.
  • The verbal abuse was said to have occurred on 13 August 2020 at the workplace.
  • The sole ground for seeking an interim order in the section 81A referral was that the injury was not substantially contributed to by Ms Stirling’s employment and that the substantial contributing factor was the application for a restraint order made by a co-worker and the consequential process.
  • The Chief Commissioner found that the injury was a result of an employment relationship between Ms Stirling and Carol.

What did the Supreme Court say?

  • In the appeal, the employer’s argued that because the injury did not arise out of or in the course of Ms Stirling’s employment, it was not compensable. In saying this, the employer argued about how section 25(1)(b) of the Act is to be interpreted.
  • Blow CJ did not accept this argument and said that the amendment to the said section no longer required a temporal connection between the onset of a disease and doing of duties at work.
  • The employer also argued that the Chief Commissioner could not conclude that Ms Stirling was first incapacitated on 13 August 2020. Blow CJ held that the Chief Commissioner could make such a finding because there was evidence of Ms Stirling’s absence from work in a statement filed by the employer.
  • Further, the employer argued that various factors contributed to the injury such that employment did not contribute to the injury substantially. These factors were not identified.
  • However, the Chief Commissioner looked at the employment relationship in totality, and not just the restraint order application, in determining that employment was the major or most significant contributing factor to the injury.
  • As such, Blow CJ found that the factors that the employer said were outside the scope of employment, were, legally speaking, within the scope of employment.
  • The appeal was dismissed.

What can we learn from it?

  • This case reminds us about knowing the correct test for causation for different types of injuries. For a physical injury (e.g., a right arm fracture), the injury needs to have arisen out of or in the course of employment to be compensable. For an injury which is a disease (e.g., adjustment disorder), employment needs to be the major or most significant contributing factor. As such, it is important to know what test to apply when trying to seek an order to stop workers compensation.
  • Also, it is important to consider section 3(5) of the Act which allows the Tribunal to determine the date of an injury which is a disease when trying to argue that a non-employment factor is a substantial contributor to the disease. This is because if a worker is on sick leave because of a workplace incident (instead of workers compensation leave), the day the worker started their sick leave could be deemed as the actual date of injury.
  • Finally, this case also reminds us that employment is not simply the time between starting and stopping work. Employment is a reference to each working day, the duties and everything that is reasonably incidental to that, which includes interactions with fellow employees.

Link to Case

 

Workers Rehabilitation and Compensation Regulations 2021

From 13 July 2021, new regulations were established under the Workers Rehabilitation and Compensation Act 1988. The new regulations replaced the Workers Rehabilitation and Compensation Regulations 2011 which was effective until 12 July 2021.

Some of the key changes are the amendments to the prescribed amount for travelling expenses and creation of further infringement notice offences in Schedule 2 of the regulations.

If you are concerned about how the new regulations affect you, please do not hesitate to contact us.

Link to Regulations

 

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