Aqua Line Plumbing and Gas Pty Ltd v KKS [2025] TASCAT 115

A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing....The very notion of a "reasonably arguable case", like the very notion of a "prima facie case", precludes a final determination of a disputed question of fact...On the face of s81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.

3. In Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2, Estcourt J said at [17]:

......what the employer is required to prove is not that there is no liability under s25 of the Act, but only that there exists, on the evidentiary material the employer relies upon in the s81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker.....on a final hearing of the worker's claim. > > The onus rests on the employer. The employer's case need not be strong or compelling, but must at least be reasonably arguable: Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38.

1. The worker's claim form refers to the worker having suffered an injury by way of a herniated disc in his lower back on 8 July 2022 in circumstances described as:

Fell down temporary stairs while carreng [sic] two 6 metre lengths of 100mm pipe. Attented [sic] to stop the fall by twisting to grab the hand rail.

2. The initial certificate, dated 30 October 2024, that was given to the employer in support of the claim diagnosed the worker to be suffering from an S5-S1 disc extrusion with S1 nerve root compromise. The certifying practitioner recorded that the worker stated his condition to be caused by "a disease, symptoms of which became evident on 8 August 2024", and that it was "an aggravation of existing low back pain since the fall he had in 2022, and was on workers compensation".
3. The certifying practitioner considered the worker's condition to be a recurrence of a previously compensable condition. The worker was certified to be incapacitated for work from 29 October 2024.

1. I understand there to be no dispute between the parties in relation to the things set out under this heading.
2. The worker made a claim for compensation in relation to a low back injury in July 2022 which was accepted by the employer. The worker received payments of compensation until there was a final clearance medical certificate delivered, dated 6 December 2022 which noted a diagnosis of disc bulge, but indicated the worker's low back pain had improved.
3. The worker returned to work without any restrictions. There were no further certificates delivered to the employer, and the worker continued to perform his pre-injury duties.
4. The worker took annual leave from 16 October 2024 to 28 October 2024. He visited his family interstate.
5. On 28 October 2024 the worker was referred for an MRI of the lumbar spine.
6. The worker did not return to work after the conclusion of his annual leave.
7. On 30 October 2024 the worker delivered to his employer a non-workers compensation medical certificate dated 29 October 2024, which certified the worker to be unfit for work by reason of a medical condition from 29 October 2024 to 1 November 2024 inclusive.
8. The worker, at the same time, delivered to the employer the claim form and initial medical certificate dated 30 October 2024, thereby making the claim that is currently in dispute.

The dispute as set out in the s 81A referral

1. The first ground of dispute put forward by the employer is that it says it is reasonably arguable that the worker has not suffered a compensable injury under any of the pathways to liability identified by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 (Bradshaw) at [23].
2. The employer relies upon a statement of Ms Morris who is the Business Administrator of the employer. As well as setting out the background to the claim, which is set out above and not disputed by the worker, Ms Morris indicated:

Around late September or early October 2024, [the worker] complained of some minor sciatic pain through his back and legs. He did not allege at the time that this pain was work caused or related to an incident at work.

3. The employer also relies upon the report of the MRI scan that was performed on 28 October 2024 in respect of the worker's low back:

Persistent low back pain with radiculopathy. Had MRI in 2022 showed disc protrusion query nerve compression.

L5-S1: central/right paracentral disc extrusion has increased in size and results in mild spinal canal stenosis and narrowing of the right sub-articular zone with compression of the traversing right S1 nerve root.

L5/S1 disc extrusion compresses the traversing right S1 nerve root.

1. The employer says it is likely that this claim is for an injury within the extended definition of 'injury' under s 3 of the Act, that is the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease.
2. The employer says it is reasonably arguable that the worker has not suffered an injury which is not a disease within the meaning of s 25(1)(a) of the Act because no workplace incident or injury has been reported or identified in relation to the onset of symptoms in 2024.
3. The employer also says that by virtue of s 3(5) of the Act the worker's injury is deemed to have occurred on the day on which the worker was first certified as being incapacitated. As the worker was first certified after he had been on leave for two weeks and had not returned to work as at the date of the initial certification, the employer says that the temporal connection between the onset of incapacity and the worker's period of annual leave makes it reasonably arguable, irrespective of whether the worker has suffered an injury which is a disease, or a recurrence, aggravation, acceleration or deterioration of a pre-existing injury or condition, that the employment was not the major or most significant contributing factor.
4. The alternative ground of dispute is that the employer says that the worker's claim is not a 'claim for compensation' within the meaning of s 80A of the Act. If that is so, the Tribunal does not have jurisdiction to deal with the claim for compensation as a claim for a new injury, and the initial workers compensation medical certificate issued on 30 October 2024 is a certificate delivered as part of the claim for compensation that was made in 2022. On that basis, the worker says that the certificate is a further certificate provided by the worker more than 14 days after the expiration of the period of incapacity specified in the last medical certificate delivered as part of the claim in 2022, and the employer may, pursuant to s 69(13) of the Act treat that certificate as a claim for compensation to which s 81A applies.
5. If this is the case, the employer says that it is reasonably arguable that the worker has wholly or substantially recovered from the effects of the injury suffered on 8 July 2022 when the final clearance certificate was issued in December of that year. Accordingly, and in reliance on Federal Hotels Ltd v Webb [2013] TASSC 36, the employer says it is reasonably arguable that it has no ongoing liability to pay compensation to the worker in respect of the 2022 claim for compensation.

1. The worker relied upon a statement he made dated 3 February 2025, in which he said:
   • He continued to have symptoms of pain in his back after he was cleared to return to work in December 2022.
   • In about July/August 2024 he started to experience pain in his right leg just above the knee.
   • Several weeks later he spoke to the owner of the employer, Mr Francis, and explained his symptoms, and said he believed it was linked to his previous injury in 2022.
   • He saw his general practitioner on 17 September 2024 who referred him to a physiotherapist for strengthening exercises.
   • After the initial discussion with Mr Francis, and before the worker went on annual leave, Mr Francis discussed his injury with him again in the presence of Ms Morris. The worker explained his symptoms to Mr Francis and Ms Morris and said he believed it to be related to his previous injury.
   • He attended the physiotherapist on 27 September 2024 and was given some movements to help ease the pain but was unable to perform those movements because of pain and discomfort.
   • During his last week before annual leave, his condition got worse, and Mr Francis was aware of that.
   • He did not suffer any injury whilst on annual leave, and instead tried to rest.
2. The worker annexed to his statement a copy of the referral letter from his general practitioner to the physiotherapist, which included:

[The worker] is experiencing pain radiating between his right hip and knee, feeling like muscular. > > There is no recent traumatic event. > > I have prescribed anti-inflammatory, but I am hoping you could help with some strengthening exercises.

3. The worker also annexed to his statement consultation notes with his physiotherapist on 27 September 2024. The consultation notes included:

Two years ago had a workplace injury and was seeing [another practitioner]. Had a disc bulge in his back, never really fully recovered. > > For four weeks now, he has had a slight relapse in the symptoms. States does feel a bit similar to what was going on before. > > MRI 2022

4. Mild lower lumbar spondylotic changes are present. No acute bone marrow abnormality.
5. Shallow broad based protrusions are present at L4/5 and L5/S1 associated with annular fissures.
6. There is a slight encroachment on the lateral recesses at L5/S1 bilaterally and maybe a source of irritation to the S1 nerve roots, although there was no displacement nor compression of these nerves.
7. The worker also filed a statement from Mr Francis that said:

.....I had a discussion with [the worker] on/around the 9th October 2024, prior to him starting a period of annual leave on the 16th October 2024. > > [The worker] and I discussed that he was having issues with back and leg pain over the last couple of weeks. We both discussed that hopefully a break from work and a rest may help the pain subside.

1. The worker says the documents from his general practitioner and physiotherapist and the initial medical certificate show a consistency of reporting symptoms between 17 September 2024 and 30 October 2024, where those symptoms form the basis of the worker's claim.
2. The worker says his injury is an 'aggravation injury' within the meaning of the extended definition of "injury" under the Act.
3. The worker says the employer's evidence supports that he has suffered an aggravation of his pre-existing underlying condition around September or early October 2024, which was before the period of annual leave commenced.
4. The employer's argument that the worker likely suffered an aggravation of his condition whilst he was on leave is unsupported by the evidence.
5. Although Ms Morris in her statement says that the worker was observed being barely able to walk due to back pain when he provided his claim documentation to the employer, the worker says that her statement does not go so far as to say whether those apparent symptoms differed from before the worker's annual leave and do not assist the worker's claim.

1. At the conclusion of the parties' submissions I raised with counsel an issue which was occupying my mind, which was that the worker's claim and other evidence did not appear to have alleged that the injury (however defined) for which the claim was made in 2024 had been substantially caused by the worker's employment.
2. Some further written submissions were made by both parties.
3. The employer says that even if the worker has suffered an aggravation, or similar, of a pre-existing injury or disease in 2024, there is nothing in the statements before the Tribunal to suggest that the worker has alleged that the employment caused the aggravation, nor identified any event at work, or set of work circumstances alleged to give rise to the worker's currently certified incapacity.
4. The worker says that by producing a claim form and accompanying initial workers compensation medical certificate, the employer can be expected to understand that the worker's injury is said to have been caused by the day-to-day duties of the worker's employment.

Section 80A - the jurisdictional question

1. Although the employer's referral and submissions raised this as the second ground of dispute, because it raises a jurisdictional issue, I will deal with this first.
2. Section 80A of the Act provides:

For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer.

3. The 'Division' referred to in s 80A is Division 1 of Part VII of the Act which includes s 81A. An employer may only use s 81A of the Act to dispute a claim for compensation 'in respect of an injury for which the worker has not previously made a claim...'. If dispute is referred to the Tribunal in respect of a claim which is not a 'claim for compensation' within the meaning of s 80A, the Tribunal has no jurisdiction to hear the referral.
4. Brett J, in State of Tasmania v Cane [2024] TASSC 56 recently confirmed the approach to be followed where there is a question about the application of s 80A to a claim for compensation at [28]. The critical question is the nature of the worker's claim, as communicated to the employer, not its validity.
5. In the present case, the claim form delivered to the employer by the worker in October 2024 refers only to the injury sustained by the worker in 2022, and for which a claim for compensation was made at that time.
6. On the face of the claim form, the worker's claim dated 30 October 2024 was not a claim in respect of an injury for which the worker had not previously made a claim for compensation.
7. Insofar as the employer's referral relates to the claim dated 30 October 2024, the Tribunal does not have jurisdiction to hear the referral because it is not a referral about a 'claim for compensation' within the meaning of s 80A of the Act.

The second part of this ground of dispute - section 69(13)

1. Even though the Tribunal does not have jurisdiction to determine the referral where it is in relation to the claim for compensation dated 30 October 2024, the second part of the employer's grounds of dispute needs to be considered.
2. Section 69(13) of the Act provides:

If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies.

3. The worker delivered to the employer a workers compensation medical certificate that certified the worker to be incapacitated for work for the period 29 October 2024 until 19 November 2024.
4. On the basis that this certificate was delivered to the employer more than 14 days after the expiration of the period of incapacity expressed in certification delivered in 2022, the employer has elected to treat the certificate dated 29 October 2024 as a claim for compensation to which s 81A applies. The employer's referral under s 81A disputes the employer's ongoing liability to pay compensation to the worker in relation to the 2022 claim.
5. On the basis of the worker being cleared for pre-injury duties in December 2022, in respect of the original claim for compensation, the employer says it is reasonably arguable that the worker wholly or substantially recovered from the 2022 injury in about December 2022, and that it has no ongoing liability to pay compensation to the worker in respect of that injury.
6. I am satisfied that the employer has demonstrated that there is a reasonably arguable case to dispute its ongoing liability to pay compensation to the worker in relation to the claim that he made in 2022.

The first ground of dispute - causation and the 'pathways to liability'

1. The employer's first ground of dispute is that the worker has not suffered an injury in compensable circumstances, and the employer relied upon the three pathways to liability identified by Brett J in Bradshaw at [23] as follows:

The authorities also establish that when regard is had to the extended definition of injury contained in subpar (b), there are in fact three available pathways to liability arising from s 25(1). These are: > > (a) The worker suffers an injury in the primary sense, that is an injury which is not a disease, but is "something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state"... Such an injury will be compensable if it arises out of or in the course of the worker's employment. > > (b) The worker suffers a disease to which his employment contributed to a substantial degree within the meaning of s 3(2A), that is, only if it is the major or most significant factor. > > (c) By virtue of the extended definition of injury and its interaction with s 25(1)(b), an aggravation etc of a pre-existing injury or disease is an injury, but only where the employment was the major or most significant contributing factor to that aggravation. In the case of the aggravation of a pre-existing disease, it is the aggravation, not the underlying disease, which must be causally connected to the employment in the required sense...

2. I have determined that, in fact the claim that has been made is not a claim for a new injury, but rather a claim in respect of the injury for which the worker already made a claim for in 2022. In the light of the finding that this is not a claim for compensation within the meaning of s 80A of the Act, this ground of dispute falls away.
3. If I am wrong about the nature of the worker's claim dated 30 October 2024, then there would be a reasonably arguable case to dispute the claim on the grounds that it is reasonably arguable than the worker has not suffered any injury as contemplated by the 'pathways to liability'
4. There is no suggestion in any of the evidence before me that the worker has asserted his low back symptoms that apparently came on in about September 2024 were the result of an injury simpliciter that arose out of or in the course of the worker's employment. To the contrary, the medical and allied health evidence records no history of incident or traumatic event.
5. Both parties made submissions on the basis that the worker had made a claim for an 'extended definition' type of injury as contemplated by the third pathway to liability. There is also nothing in the material before me to support that any injury suffered by the worker is either a disease or an extended definition injury to which the employment was the major or most significant contributing factor.
6. It was submitted that upon receipt of a claim for compensation, an employer ought to infer that the worker asserts the injury has been caused by the day-to-day duties of the employment. I do not agree with that submission. A claim must be in respect of an injury identified in the claim form: see Bradshaw at [28]. In this case, no injury was identified, save for the injury in 2022 for which a claim had already been made.
7. In accordance with Coatsworth, a reasonably arguable case will exist if it is reasonably arguable on identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected. I consider that this would be such a case.

1. In accordance with my findings in relation to the employer's second ground of dispute, pursuant to s 81A(3)(c) and (d) I order that weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI of the Act are not to be paid by the employer from the date of this determination.