But the expert says!

This Supreme Court appeal decision looks at how the content of expert reports should be evaluated by a Tribunal for the purposes of a s81A referral.

In issue

• Whether for the purposes of a s81A referral the Workers Rehabilitation and Compensation Tribunal (the Tribunal) can reject an expert opinion on the basis that the opinion is without foundation.

The background

The Respondent made a workers’ compensation claim for stress arising from a workplace incident. The Appellant disputed the claim under s81A of the Workers Rehabilitation and Compensation Act 1988 (the Act) relying exclusively on a report by a Consultant Psychiatrist (the expert), which stated that it was the Respondent’s alcohol use, not her employment, that was the cause of her condition.

The decision of the Tribunal

The Tribunal determined that a reasonably arguable case did not exist. They found the tendered report to contain no proper evidentiary foundation for the opinions stated within.

Amongst other things, the Tribunal noted that:

• The expert’s report used the Australian guidelines to assess the Respondent’s alcohol consumption but then used the US Guidelines to make a diagnosis of ‘heavy drinking’. The Tribunal was concerned by this because in Australia a standard drink is 10g of alcohol, in the US it’s 14g of alcohol.
• Further, the report made no apparent analysis of qualitative differences between the two standards or otherwise demonstrated that there was any proper basis for linking them.
• There was no evidence provided to support the expert’s assessment of the number of standard drinks consumed by the worker.
• The expert’s opinion that the worker increased her consumption of alcohol prior to her making her claim and was a heavy drinker was based on assumptions rather than history of evidence.
• The expert’s opinion that the worker’s psychological symptoms had been adversely affected by alcohol did not address the question of whether there was an argument that the worker had suffered a disease which was substantially caused by her employment.

In light of the above, the Tribunal found that there was no factual or evidentiary basis to support the expert’s conclusion and therefore did not consider that the evidence would have a reasonable chance of success at a final hearing.

The issues on appeal

The employer appealed to the Supreme Court. Two main issues were considered. Firstly, whether the Tribunal was wrong to place no weight on the expert report. Secondly, whether the Tribunal had erred in its application of the accepted s81A ‘tests’ by requiring the Appellant to establish the cause of the Respondents injury.

The decision on appeal

The appeal was dismissed.

First issue

His Honour Justice Geason reiterated that the onus of proof is on the employer in a s81A hearing. Submitting a report, even if it is uncontested, is alone not enough to discharge the employer’s onus of proof. Justice Geason was highly critical of the assertion that the Tribunal is required to give weight to an opinion on the basis it is uncontested stating at [25] ‘It would be a derogation of the obligation vested in the tribunal to proceed as if that were enough.’ In His Honour’s opinion, the Tribunal can and should critically analyse the evidence before it. In this case, the Tribunal’s analysis found the expert’s report to be without foundation. His Honour Justice Geason did not find any errors in the Tribunal’s analysis. Noting that whilst the report was uncontested, the Tribunal’s analysis of it exposed it as without foundation which was on an orthodox basis for rejecting the opinion (per Dasreef¹)

Second issue

The Appellant submitted that the Tribunal had incorrectly required the Appellant to establish the cause of the respondent’s injury, submitting that the tribunal misstated the accepted Bradshaw test². Again, His Honour rejected the Appellant’s submissions finding that the Tribunal did not require the employer to demonstrate the cause of injury. Rather, ‘The appellant's case failed on an application of first principles: the tribunal rejected the opinion relied upon by the employer for its fundamental failure to identify a foundation for that opinion.’ (at [29]).

Implications for you

It’s easy when obtaining expert reports to simply rely upon them without question. This case is a reminder that when obtaining and relying on expert opinions, it’s important to ensure that the expert has provided an evidentiary basis for the opinions contained within because without an evidentiary basis, the report is not enough to establish a reasonably arguable case exists. This can be done by including additional materials that you want the expert to review when coming to an opinion, in addition to their own examinations, as well as making sure they are using the right AMA Guidelines or applying the right legislative tests and making sure that what they are saying meets the standards that is required for the Tribunal. We know that the reasonably arguable case threshold is a low one, however evidence that is relied upon by the employer still needs to be reasonably arguable if it is to be accepted at a final hearing.

Roman Catholic Church Trust v Prosser [2021] TASSC 55

¹ Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588
² Bradshaw v Tasmania Networs Pty Ltd [2020] TASFC 2