Can you prove degenerative changes would have become symptomatic?

08 September 2023

Employer's appeal to the Supreme Court was unsuccessful on all grounds with the Court siding with the Tribunal on what the employer says was an error in the application of fact and law.

In issue

  • Whether TASCAT erred in law and in the application of fact; and whether a supervening event such as a degenerative disease becoming symptomatic is a new reason for incapacity, and no longer the injury sustained in the course of employment.

The background

On 6 July 2020 the respondent worker suffered a lumbar strain injury in the course of his employment. This was an exacerbation of a pre-existing degenerative condition. The worker was incapacitated for work from 31 July 2020 and has not returned to work since. Liability was accepted and weekly compensation was paid.

On 9 November 2021, the employer made a referral to the Tribunal for review of weekly payments under section 88. In addition, weekly payments were terminated by the employer from 26 November 2021 under section 86(1)(c). This was on the basis of a medical certificate signed by Dr Drewry on 29 October 2021 stating the worker had suffered an injury but any incapacity he was suffering from was no longer wholly or substantially as a result of that injury but rather a pre-existing degenerative condition.

The worker disputed the termination under section 86(4).

The decision by the Tribunal

The Tribunal found that the current incapacity was a result of the injury suffered on 6 July 2020. The Tribunal did not consider the second limb of section 86(1)(c) was satisfied. It found the worker had not recovered from any aggravation or exacerbation of any underlying degenerative condition.

The Tribunal found no evidence of any intervening event which broke the chain of causation. Instead, it noted the worker has ongoing effects of the work injury. Therefore, there had not been a valid termination of the worker’s payments.

The employer appealed to the Supreme Court of Tasmania on three grounds.

The decision of the Supreme Court

The court considered each ground of appeal in turn.

The first ground failed and the Supreme Court affirmed the Tribunal’s application of the test to be applied where the employer claims that a worker’s incapacity is no longer wholly or substantially due to their work injury: 'In order to satisfy its onus of proof, an employer must establish that notwithstanding the fact that the worker suffered the injury that caused an incapacity to work, the stage had been reached, as at the date the certificate was signed, that the pre-existing degenerative changes in his lumbosacral spine would have, in any event, become symptomatic to the extent of producing his current capacity for work'.

The second ground of appeal addressed the employer’s reduction of the worker’s entitlement to weekly payments pursuant to s88 of the Act. The Court found the employer was required by the Act to prove the worker has a partial incapacity for work as distinct from total capacity. If established, the employer would then need to establish the amount that the worker would be able to earn in suitable employment. As the worker was totally incapacitated, the Tribunal ought not have considered future earnings.

Ground 3 was amended with leave to allege the Tribunal erred in law by failing to provide reasons for preferring the opinions of one doctor over another.

The court noted it was clear when the decision of the Tribunal was read as a whole, why it: '..preferred the evidence of Drs Perry and Francis to that of Drs Drewry and Jonathan. No doubt that preference could have been made even plainer but the Tribunal satisfied its responsibility to provide reasons for its decision and disclosed a reasoning process. To observe that the process may have added more verbiage as to why certain medical evidence was preferred over other medical evidence is not the identification of an error of law'. In addition, the Court specifically stated that: 'The decisions of Tribunals are not meant to be documents perfected by parliamentary draftsmen. It is inappropriate to trawl through them with a fine tooth comb, looking for error when the context of what is being said is clear from the entire decision.'

Helpfully, the Court identified several factors which might influence a Tribunal to prefer a particular expert’s medical evidence over that of a conflicting expert. Predictably, the factors included the existence of expert notes, face to face examination, concessions made by an expert during cross-examination (or a lack of appropriate concessions being made), number of dealings with a worker and a lack of evidence to support alternative causes of incapacity where that is proposed by an expert.

Implications for you

Strong medical evidence is required to demonstrate underlying degenerative changes are a supervening event breaking the chain of causation and enabling the employer to terminate payments.

Mosaic Support Services (Tas) Inc v Woolley [2023] TASSC 27

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