A s81A hearing is not the forum for arguing over a reasonable cause
Under the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act), a s81A hearing is not a forum for the Tribunal to determine whether the worker has a reasonable excuse[1] for failing to make a claim within 6 months of injury, or failing to provide notice of injury in accordance with the Act.[2] Those are issues for a worker to raise on a s42 referral.[3]
Whilst this is helpful in obtaining s81A orders, it does not remove any risks at the s42 hearing stage.
Being overscrupulous is a must when it comes to s81A evidence
The Act requires an employer to file, with a s81A referral, all of the material it intends to rely upon at the s81A hearing. The Tribunal has a discretion to allow the employer to adduce further evidence,[4] e.g. in response to material filed by the worker after the s81A referral has been filed. Or where, for a particular reason, the employer was unable to complete its full investigation within the 84 day time limit. However, where an employer or its solicitor fail to include a piece of evidence by reason of mistake only, the Tribunal is unlikely to exercise its discretion to allow the evidence in.[5]
The lesson here speaks for itself; always double check the documents you are filing.
Time and costs not to be wasted on statements of facts
Under s49 of the Act, the Tribunal has the power to direct a party to provide documents such as a statement of facts, matters and contentions setting out its position. The Tribunal is obliged to conduct matters with as much speed, and as little technicality and formality as possible. It has therefore been reluctant to direct an employer to provide a statement of facts and contentions where that step will delay a matter from proceeding to a s42 hearing, and in circumstances where the worker has already been provided with witness statements under the s81A referral setting out the factual circumstances from the employer’s perspective.[6]
It is worthwhile for an employer to consider pushing back on requests for statements where there is a good argument that the statement will not add any additional information to the worker's knowledge of the employer's case.
Don't dismiss Dasreef at the s81A stage
Whilst the Tribunal is not bound by the rules of evidence,[7] where a medical report relied upon by an employer at a s81A hearing fails to provide sufficient detail on the reasons for its conclusions (as required by Dasreef),[8] the Tribunal may refuse to accept the evidence.[9]
All medical experts need to be briefed on their requirements under the expert code of conduct, particularly when it comes to their exposing the factual basis relied upon and the reasoning for reaching their conclusion.
An injury is not confined to what is contained in the claim form or initial medical certificate
For the purposes of a s81A referral, a worker's classification of injury (i.e. an injury or a disease or an aggravation) is not limited to what is contained in the claim form or the initial medical certificate. Nor is the causation inquiry limited to what happened at work on the date of incident identified in the claim form or medical certificate.[10] Employment as a whole must be considered as was confirmed in Long v Kmart.[11]
Therefore do not limit your causation investigation to the specific circumstances as described in the claim form and medical certificate.
'Employment' can include out of workplace gossip
A worker whose psychological condition arose following a conversation with a neighbour (who was also a client of the worker and employer) regarding the worker's colleagues talking about him behind his back, does not remove it from the boundaries of the worker's employment for the purposes of considering whether employment may or may not be the major or most substantial cause of the worker's condition. This is despite the conversation not taking place at work.[12]
The Tribunal acknowledged the outcome may have been different had the gossip been third hand, rather than directly from, and involving, a client. With the ever-increasing use of social media, this issue must continue to be tested by employers so that the boundaries of 'in the course of employment' is not unfairly unlimited.
[1] In accordance with s37 or s38 of the Workers Rehabilitation and Compensation Act 1988 [2] s32(1) of the Workers Rehabilitation and Compensation Act 1988 [3] MDG Contracting Group Pty Ltd v S [2020] TASWRCT 2 and Fero Strata Pty Ltd v D [2019] TASWRCT 40 [4] s81A(2AA) of the Workers Rehabilitation and Compensation Act 1988 [5] Healthe Care Burnie Pty Ltd T/As North West Private Hospital v T. [2019] TASWRCT 45 [6] W. v Southside Family Medical (Burnie) Pty Ltd [2019] TASWRCT 47 and M. v Allianz Australia Services Pty Ltd [2019] TASWRCT 23 [7] s49 of the Workers Rehabilitation and Compensation Act 1988 [8] Dasreef Pty Ltd v Hawchar [2011] HCA 21 [9] Healthe Care Burnie Pty Ltd T/As North West Private Hospital v T. [2019] TASWRCT 45 [10] Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 [11] Long v Kmart Australia Ltd [2016] TASSC 6 [12] The State of Tasmania (Dept of Education) v T. [2020] TASWRCT 1
