(i) Within twenty-eight days, the worker is to make further discovery of documents in accordance with Regulation 6 of the Workers Rehabilitation and Compensation Regulations 2021 by way of:

• income taxation documents, including notices of assessment, for the financial year ending 30 June 2022 to the present; and

• All documents relating to any employment and employment related activities for the financial year ending 30 June 2022 to the present.

(ii) The application for the employer to disclose Dr Davie's report dated June 2025 for use in these proceedings is dismissed.

Workers compensation - interlocutory applications - further discovery of documents - relevance - release of report following independent medical assessment - whether privileged document

Workers Rehabilitation and Compensation Act 1988; ss 42C, 69, 81A, 90B

Workers Rehabilitation and Compensation Regulations 2021;

Tasmanian Civil and Administrative Tribunal Act 2020; ss 85(3), 90B.

Y v Onestop Metal Recycling Tas Pty Ltd [2016] TASWRCT 34;

S v Nick Scali Limited [2019] TASWRCT 19;

L v State of Tasmania (Dept of Education) [2022] TASCAT 50;

M v State of Tasmania (Department of Health) [2023] TASCAT 179;

Smith v Latrobe Council [2024] TASCAT 43;

Idoport Pty Ltd and Anor v National Australia Bank Limited [2000] NSWSC 1215;

V. v Caterpillar Underground Mining Pty Ltd [2015] TASWRCT 44;

L v State of Tasmania (Dept of Education) [2022] TASCAT 50;

BI v St Giles Society Ltd [2025] TASCAT 189;

The decision has been anonymised for the purpose of publication.

1. The worker made a claim for workers compensation in July 2023. She said in her claim form that she had been subjected to consistent micro aggression and bullying in her employment as a clinical nurse consultant. Her claim for compensation was supported by a certificate of capacity dated 9 June 2023.
2. The employer elected to dispute liability to pay compensation to the worker in respect of her claim, and in October 2023 referred its dispute to the Tribunal pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).
3. Solicitors acting on behalf of the worker conceded the existence of a reasonably arguable case in relation to the employer's s 81A dispute, and on 27 October 2023 consent orders were made in respect of the s 81A dispute with the effect that the employer was relieved of liability to pay compensation to the worker.
4. On 4 March 2024 the worker, through her then legal representatives, referred her claim for compensation to the Tribunal for determination of her entitlement to weekly payments and expenses payable pursuant to Division 2 of Part VI of the WRC Act. Documents filed in support of the s 42 referral included reports and correspondence from the worker's treating psychologist, the worker's general practitioners, the worker's treating psychiatrist and a number of continuing workers compensation medical certificates.
5. As part of the preliminary stage of the conciliation process under s 42C of the WRC Act, a number of pre-hearing matters were attended to over the following months, including discovery of documents and the issue of summonses to the worker's medical treatment providers. Documents delivered to the Tribunal in accordance with the summonses were provided to the worker's solicitors, and no privilege was claimed in respect of those materials.
6. On 25 August 205 the worker's representative advised the Tribunal and the employer's solicitor that they no longer held instructions from the worker, and on 27 August 2025 the worker confirmed by email to the employer's solicitors and the Tribunal that she was representing herself in these proceedings.
7. In the course of the preliminary stage of the conciliation process, two interlocutory issues have now arisen, requiring resolution by the Tribunal. The first issue relates to a request by the employer that the worker make further discovery of documents. The second relates to a request by the worker that the employer release to her a copy of a particular medical report.

1. On 22 August 2025 the employer's solicitors wrote to the worker's representative as follows:

Could you please have your client make further discovery in accordance with Reg 6 of the Workers Rehabilitation and Compensation Regulations 2021. The further discovery that the employer seeks are documents and related documents in the following classes: > > (1) Your client's income taxation documents, including notices of assessment, for the financial year ending 30 June 2022 to the present; and > > (2) All documents relating to any employment and employment related activities from [sic] for the financial year ending 30 June 2022 to the present. > > Please have your client make that further discovery within 14 days.

2. On 12 September 2025 the worker responded to the correspondence from the employer's solicitor of 22 August 2025 as follows:

I refer to your letter dated 22 August 2025 (attached) requesting "further discovery in accordance with Regulation 6 of the Workers Rehabilitation and Compensation Regulations 2021". > > Although filed under s42, the referral in substance seeks determination of entitlement to weekly payments and expenses, which necessarily requires determination of liability under s 46. > > The scope of discovery under Regulation 6 is limited to documents or property relating to the matter in dispute. Financial or quantum related information does not fall within the scope at this stage. > > I respectfully confirm that I am not considering a global settlement prior to the Tribunal's determination of liability. My application seeks determination of liability under s46 of the Workers Rehabilitation and Compensation Act 1988. > > Should liability then be established, weekly compensation entitlement would fall to be assessed under s69 and related provisions.

3. On 24 September 2025, at the direction of a Tribunal Senior Case Officer, the employer outlined the basis of its request. The employer referred to record that had been delivered to the Tribunal in response to summonses issued at the request of the employer from the worker's treatment providers. The worker was directed towards particular documents, and the employer then outlined:

Those records, and others in the bundle that provide context, demonstrate that:

• Subsequent to your role with the Department of Health and the circumstances in 2023 giving rise to your workers compensation claim you undertook work at another organisation (or other organisations);
• You experienced difficulties in that subsequent employment in about April/May 2024; and
• You resigned from that subsequent employment.

Those issues are relevant to the State's liability to pay you compensation, that being a determination you seek on your s 42 referral, because:

• The injury which is the subject of your claim for compensation is an injury which is a disease under the Workers Rehabilitation and Compensation Act 1988;
• An injury which is a disease is 'suffered' for the purposes of the Act when the injured worker is first incapacitated for work by reason of the injury; conversely, an injury which is a disease has not been suffered until the worker is first incapacitated for work;
• Whether a worker is incapacitated for work is determined, firstly as a matter of fact, and only if that cannot be ascertained by reference to the facts, is regard had to when a doctor first certifies incapacity: s 3(5) of the Act;
• The State therefore contends that it is an issue in this case as to whether or not you have had incapacity in respect of the injury at any time which has been of such significance to establish that you have 'suffered' an injury; and
• That you have worked since the s 81A dispute of your claim suggests that there has been capacity for work, and hence that goes to the degree of any entitlement to weekly payments that you may have if liability for the claim is determined in your favour.

1. The employer says the requested documents are relevant to the question of the existence and extent of the worker's incapacity for work. It also points to a number of entries in the Allied Health records delivered to the Tribunal under summonses which refer to the worker being employed since the date of her claimed injury.
2. The reasons put forward by the employer in its correspondence of 24 September 2025 were adopted.
3. The employer notes that by the s 42 referral, the worker seeks substantive orders that include orders relating to her entitlement to weekly payments of compensation. The employer submits:
   • In the event that the worker was eventually successful, the Tribunal will need to consider the extent of the worker's incapacity.
   • In accordance with s 69 of the WRC Act weekly payments of compensation are payable by an employer to a worker where total or partial incapacity for work results from an injury suffered by the worker. The calculation of weekly payments in the case of a partial incapacity requires the Tribunal to consider amounts the worker has earned or would have been able to earn in suitable employment.
   • Where the worker has been working for a period of time (as appears to be the case on the face of the treatment provider records) the question of a deduction for earnings would be relevant to the worker's ultimate entitlement.
   • Financial records of the kind sought by the employer relating to the worker's employment and earnings since the date of the claimed injury would be relevant to those questions.
4. The worker said that the further discovery sought by the employer would not be relevant to the issues in dispute between the parties because she only wants the Tribunal to determine the question of the employer's liability in respect of her claim. In response to the employer's submission that it is open for it to explore the issue of the worker's incapacity as a matter of fact, the worker says there has never been any disagreement that she suffered an injury, and there has been no conflicting opinion expressed by her treatment providers or any independent medical assessors. She felt that the employer was 'moving the goal posts'.

1. The employer has requested further discovery of documents pursuant to Regulation 6 of the Workers Rehabilitation and Compensation Regulations 2021 (the WRC Regulations).
2. Regulation 6 of the WRC Regulations provides:

(1) A party, by notice in writing served on any other party, may request - > > (a) discovery of any document or property that is relevant to the issues in dispute in any application or referral; and > > (b) a list of all documents discoverable under paragraph (a) ; and > > (c) disclosure of the location of those documents.

3. In the usual course of a s 42 referral seeking determination of a worker's entitlement to weekly payments and benefits under Division 2 Part VI of the WRC Act, the question of a worker's earnings, and capacity to earn would be an issue that would need to be considered by the Tribunal in the course of the hearing, unless otherwise the subject of agreement by the parties.
4. As a general proposition, it is desirable for all issues in proceedings to be dealt with by the Tribunal at the same time, in the same hearing. Tribunal decisions where this has been confirmed include Y v Onestop Metal Recycling Tas Pty Ltd [2016] TASWRCT 34; S v Nick Scali Limited [2019] TASWRCT 19; L v State of Tasmania (Dept of Education) [2022] TASCAT 50, M v State of Tasmania (Department of Health) [2023] TASCAT 179 and Smith v Latrobe Council [2024] TASCAT 43.
5. The Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) gives the Tribunal the power to an aspect of proceedings to be heard and determined separately: s 85(3)(a). This is a matter of discretion, and the party seeking to have an issue separately determined carries the onus of satisfying the Tribunal that it is appropriate to exercise the discretion: See Idoport Pty Ltd and Anor v National Australia Bank Limited [2000] NSWSC 1215 at [7].
6. The worker has not made an application for the question of the employer's liability to be determined as a preliminary or separate issue in relation to her s 42 referral. The documents sought by the employer by way of further discovery are, on their face, relevant to issues that will need to be determined by the Tribunal as part of the worker's s 42 referral. There will be an order for further discovery as sought by the employer.

1. I understand from the parties that the worker was assessed by Dr Michael Davie, Consultant Psychiatrist, in June 2025 at the request of the employer.
2. The worker has made an application to the Tribunal seeking production of Dr Davie's report, prepared as a consequence of the independent medical assessment.
3. The employer says that Dr Davie's report came into existence for the dominant purpose of the employer obtaining legal advice, and for use in litigation concerning the worker's claim for compensation. The employer says that the report of Dr Davie was released to the worker's primary treating medical practitioner in accordance with s 90B(3)(a) of the WRC Act. It notes that under s 90B(4) of the WRC Act a primary treating medical practitioner who receives a report in those circumstances must provide a copy to the injured worker.
4. The employer submits that compliance with s 90B(3)(a) and compliance by a medical practitioner with s 90B(4) does not amount to a waiver of privilege in relation to the report. In particular the employer relies upon the decision in V. v Caterpillar Underground Mining Pty Ltd [2015] TASWRCT 44 (Caterpillar). The employer says that at no stage has it done anything in respect of Dr Davies' report that could be construed as being inconsistent with an intention to maintain legal professional privilege over the document.
5. The worker says that Dr Davie's report is relevant to the question of whether, and when, she 'suffered' an injury for the purposes of the Act. She said Dr Davie's report goes directly to not only the factual question of when incapacity was suffered, but also the cause of incapacity.
6. In response to the employer's assertion that the report of Dr Davie is one to which legal professional privilege applies, the worker says that the report has already entered the worker's treatment pathway and is therefore no longer a document solely for the purposes of litigation.
7. The worker says it is unfair for the employer to seek further discovery in relation to her capacity for work whilst refusing to disclose Dr Davie's report that is relevant to this issue.

Determination - request for release of medical report

1. In Caterpillar, Acting Commissioner McKee considered whether legal professional privilege attached to a medical report that had been provided to a worker's general practitioner as required by s 90B(3)(a) of the WRC Act, and a copy of which was subsequently given to the worker by the general practitioner as required by s 90B(4). His Honour determined that a claim of legal professional privilege over the report in question could be maintained by the employer. His Honour's decision has since been followed in the Tribunal: see L v State of Tasmania (Dept of Education) [2022] TASCAT 50, BI v St Giles Society Ltd [2025] TASCAT 189 and Limcora Pty Ltd v KT [2025] TASCAT 210.
2. The employer asserts that the report of Dr Davie was brought into existence for the dominant purpose of litigation, being these proceedings. I do not understand the worker to assert otherwise. However, the worker says that the report is relevant to issues that will likely be before the Tribunal, and that legal professional privilege no longer attaches to the report in question because, having been released to the worker's general practitioner it has entered the worker's medical treatment pathway.
3. In Caterpillar, Acting Commissioner McKee commented at [20]:

The amendments that were made to the Act and earlier amendments to the Act, were inserted so that the employer, if in the possession of medical opinions from an expert, was required to provide those medical opinions to the worker's treating practitioner. Clearly the intention of that was to enable the worker's primary treating practitioner to consider the views of other medical practitioners which may assist in management of the worker's claim.

4. Whilst it may be the worker's general practitioner has informed themself about Dr Davie's opinion, and may have assimilated that information for the purpose of medical management of the worker, it remains the case that the report came into existence for the dominant purpose of litigation, and there is nothing to suggest that the employer has waived the legal professional privilege that attaches to Dr Davie's report. I accept that Dr Davie's report may contain information that would be potentially relevant to issues that will be before the Tribunal as part of the worker's s 42 referral, but the report remains subject to legal professional privilege.

(i) Within twenty-eight days, the worker is to make further discovery of documents in accordance with Regulation 6 of the Workers Rehabilitation and Compensation Regulations 2021 by way of:

• income taxation documents, including notices of assessment, for the financial year ending 30 June 2022 to the present; and
• All documents relating to any employment and employment related activities for the financial year ending 30 June 2022 to the present.

(ii) The application for the employer to disclose Dr Davie's report dated June 2025 for use in these proceedings is dismissed.

1. The employer's application in relation to further discovery included an application for costs. I will hear the parties as to costs if that becomes necessary.