Workers compensation - Entitlement to compensation - Whether reasonably arguable case.

Workers Rehabilitation and Compensation Act 1988; ss 81A, 32, 33, 33A, 37, 38.

Vos Constructions and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38;

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90;

Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41;

State of Tasmania v Muir-Wilson [2001] TASSC 30;

Tasmania v Pilling [2020] TASSC 13.

The decision has been anonymised for the purpose of publication.

1. The worker made a claim for compensation in October 2024 for post traumatic stress disorder (PTSD) that she said arose working as a mental health nurse at the Royal Hobart Hospital.
2. The worker's employer is a recruitment company. It disputed liability to pay compensation to the worker and referred the dispute to the Tribunal under s 81A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
3. Where an employer refers a claim under s 81A of the Act the Tribunal must determinate whether a reasonably arguable case exists concerning the employer's dispute.
4. The onus to demonstrate that a reasonably arguable case exists rests on the employer. The employer's case need not be strong, nor compelling, but must at least be reasonably arguable: Vos Constructions and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38.
5. The test for whether a reasonably arguable case exists was set out by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, [10] (St Helens Oysters):

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.

1. The worker's claim was dated 1 October 2024, and in her claim form she identified that she had suffered an injury or become totally or partially incapacitated on 11 January 2023. She also indicated that she had stopped work on 15 June 2023. She described, in the claim form:

Over the course of my employment as mental health nurse I was exposed to numerous violent incidents from patients and consistent occupational hazards that occurred on a weekly to daily basis. These were reported at the time the incidents occurred and I followed the reporting pathways as directed and clinically advised, ie - to the place of employment and supervisors. One of the incidents included where a patient sexually assaulted and harassed me on 11th of January 2023, this patient also continued this behaviour after the 11th of January 2023. I have developed post traumatic stress injury due to this prolonged longitudinal recurrent exposure to these incidents at work.

2. In her claims form the worker also referred to having experienced:

Prolonged longitudinal workplace stress, exposure to frequent occupational violence and limited/minimal clinical managerial support to support mitigating occupational hazards and clinical risks.

3. The initial workers compensation medical certificate that supported the claim was dated 6 February 2024, and which provided a final diagnosis that the worker was suffering from PTSD, which was certified to be consistent with the stated cause of the incident which occurred on 11 January 2023 where the worker was assaulted and ongoing harassment when she was moved to a different ward and followed by the patient. The worker was certified to be incapacitated for work from 6 February 2024 to 5 March 2024.
4. A further workers compensation certificate of capacity dated 22 October 2024 was delivered by the worker to the employer. This certificate also referred to the date of injury, or the date that the worker became totally or partially incapacitated, as 11 January 2023 and noted the stated cause of the worker's injury as:

Assaulted and ongoing harassment (when she moved to a different ward and he followed her) by a patient. Ongoing exposure to occupational violence. > > Please note: workers comp has been ongoing since 11/01/23. Patient's injury also spanned 05/03/204 (sic) - 05/06/2024. We were actioning other urgent medical conditions during this time and thus did not prioritise workers comp certificates.

5. The worker was certified to have capacity for suitable alternative work from 21 October 2024 until 19 November 2024.
6. On 12 November 2024 a claims adviser from the employer contacted the worker, seeking more details. Her email to the worker asked for some details in relation to why there was a delay in making the claim between January 2023 and October 2024, and also why there had been a delay in seeking medical assistance between January 2023 and February 2024. The worker was also asked, in relation to the "urgent medical conditions" referred to in the certificate dated 22 October 2024 if the medical conditions were associated with the claimed injury, or otherwise.
7. By email response the worker advised:

• I reported the incidents at work directly to my supervisor at the Hospital at the time they occurred, you also reported the incident to Medacs Healthcare, who I was told to report incidents to. My contacts with hospital managers had many opportunities to advise me of my right to claim, especially with many contact post incident.

No-one at [sic] told me of my right to make a worker?s [sic] compensation claim at the time.

• I were [sic] not aware of a diagnosed work-related injury until I was in consultation with my GP about my symptoms, prompting the claim.
• I have not recovered from this injury and I am still being treated and have any incapacity [sic] for work due to this illness/injury.
• I served the worker?s [sic] compensation claim on Medacs in June 2024, and were [sic] not aware I had incorrectly served the claim until I was notified of a dispute on 27 August 2024.

In relation to the certificate and the medical emergency. I had an appointment booked, I attended the appointment and had decompensated significantly, upon my GP assessing me, she had to respond to my acute suicidality and deemed it was not clinically appropriate at the time to do a WC certificate because I was acutely suicidal and was experiencing a medical emergency. Suicidality is multi factorial in nature and the stress of lodging and navigating work cover in conjunction of complex social and the unbearable symptoms I was experiencing at the time was causing suicidality.

1. The employer disputed liability to pay compensation to the worker on a number of grounds.
2. The employer says that there is a factual dispute in relation to the alleged cause of the worker's injury as described in the claim and initial certification. The employer says that because there is a factual dispute as to the existence of the incident that the worker says caused her injury, the employer says that it is reasonably arguable that the worker has not suffered an injury, within the meaning of the Act in compensable circumstances. The first three grounds of dispute cover the 'pathways to liability' discussed by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41.
3. The employer also says that the worker failed to provide notice of injury as soon as practicable after the occurrence of the injury as required by s 32(1)(a) of the Act.
4. Finally, the employer says the worker did not make a claim for compensation within six months after the date of the occurrence of the injury, as required by s 32(1)(b) of the Act.
5. In support of the dispute, and in addition to the documents referred to above, the employer relied upon a statement of Ms Kayla Davison, who is an account manager for the employer.
6. In her statement, Ms Davison outlined the following:
   • The worker was employed by the employer on a casual basis from 30 October 2022 until 21 April 2023 during which time she provided nursing services to the Tasmanian Health Service as part of a labour hire arrangement. The Statewide Mental Health Service was the host site during her placement.
   • If an employee on a labour hire arrangement is injured the worker will either report the incident or injury directly to the employer or to their recruitment consultant. Their recruitment consultant is employed by the recruitment company used to place employees, Allied Employment Group Pty Ltd T/As Medacs Health Care (Medacs). The recruitment consultant is the employee's point of contact during their placement and has direct contact with the host site.
   • At no time during her employment with the employer did the worker report suffering an injury nor did she say that she had suffered any incapacity for work resulting from a work injury. The employer did not receive notification of an injury either from the worker or Medacs.
   • The employer has no contact with the host site and all contact is facilitated through Medacs. If an incident or injury was reported to the host site then it would have been communicated to Medacs. Since receiving the worker's claim for compensation Ms Davison said she had contacted Medacs and sought any information that they had in relation to the alleged incident on 11 January 2023. Ms Davison was told that no such incident was reported at all.
   • The employer did not hear anything from the worker after her contract ended on 21 April 2023 until 19 October 2024 when the employer was notified about the alleged injury. 9 October 2024 was the date the employer received the claim form and initial workers compensation medical certificate from the worker.
   • The employer says the claim form suggests that the worker stopped working due to the alleged injury on 15 June 2023, however the worker's contract with the employer ended on 21 April 2023 because the host client site advised she was no longer required. Ms Davison sent a letter to the worker informing her that the contract would be ending on 21 April 2023. In fact, it was likely the worker's last shift was prior to 16 April 2023.
   • Because of the time between the worker ceasing work with the employer and seeing her general practitioner in February 2024, the employer cannot be satisfied that the worker suffered an injury as alleged on 11 January 2023. The employer has been unable to obtain any evidence to suggest the alleged incident or incidents occurred at all.
   • The employer has been prejudiced by the worker's failure to provide notice of injury. The passage of time since the alleged workplace incident has made it very difficult to investigate or to verify that the alleged incident or incidents occurred at all.
   • The employer did not provide the worker with a s 33A notice in the six months that followed from 11 January 2023 because it had not been notified that a work injury had been suffered until 9 October 2024 when the claim form and initial workers compensation medical certificate were received.
7. The night before the employer's s 81A referral was listed for hearing the worker filed a statement with a number of attachments. The matters set out by the worker relevantly include:

• She commenced employment at the Royal Hobart Hospital in December 2022 in the Mental Health Department as a Mental Health Registered Nurse.
  • She was employed with Medacs Healthcare who are an agency nursing company that supply nurses to the Tasmanian Health Service, Department of Health.
  • On 10 November 2022 she signed a copy of an employment contract with Medacs Health Care.
  • On 11 January 2023 she was rostered on an afternoon in the High Dependency Unit of the Mental Health Department of the hospital. During this shift at approximately 9:45 pm a patient aggressively approached her and assaulted her. The patient grabbed her shirt, pulled it down to expose her chest and looked down her shirt.
  • She immediately reported the incident to the after-hours Nurse Unit Manager and used an online hazard notification internal system the hospital uses to lodge an incident report.
  • The standard practice to notify of incidents is to lodge an incident report using the online internal reporting system of the hospital. Employees are also directed to tell their immediate supervisor of any incidents. She followed the standard procedure in notifying the workplace of the incident immediately after it occurred.
  • Following this shift she spoke to the Director of Statewide Mental Health Service who put a plan in place for her not to work or be on any shifts with the patient who had assaulted her. She was also encouraged to report the incident to the police which she did at the Hobart police station in about mid January 2023.
  • On 13 January 2023 Ms Petkovski, who was her case manager at Medacs and the Principal Recruitment Consultant, contacted her as the hospital had notified Medacs of the injury. They spoke about the incident, and the worker was encouraged to lodge an Incident Notification form to Medacs. Ms Petkovski, in an email dated 13 January 2023 advised her that she had spoken to Ms Nolan, the head of workplace relations with Medacs to "see if there is anything we can do or is required to be done". Ms Nolan had asked if the worker could complete an Incident Notification form.
  • On 31 January 2023 the worker completed the Incident Notification Form for Medacs and sent it to Ms Petkovski [a copy of the form was attached to the worker's statement which included advice that on 11 January 2023 she had been assaulted by a patient]. Receipt of the incident report form was acknowledged by Ms Petkovski [an email of acknowledgement from Ms Petkovski was attached to the worker's statement].
  • Prior to the worker's next shift she spoke to the Director of Statewide Mental Health Service regarding the incident and the plan that was in place to ensure the worker's safety. The plan was for the worker to work out of the Medium Acuity Unit away from where the patient in question was located.
  • On or about 18 January 2023 the worker was working at the Medium Acuity Unit. She said in her statement:

The same patient who had assaulted me previously walked into the area where I was located. He cornered me and began verbally abusing me saying I had lied about the assault, and asked me why I had contacted the police. He called me a slut and was aggressively coming towards me. The only way I thought to protect myself was to lock myself in the room with [a paranoid patient she had been attempting to de-escalate]. Once I shut the door and locked it the patient aggressively banged on the door attempting to get in.

• During this incident the worker's personal duress alarm did not work and she had to use the wall duress point.
• She immediately reported this further incident to the senior registered nurse who was the after-hours Nurse Unit Manager. The worker went home sick for the rest of the shift.
• Other incidents occurred whilst she was working at the hospital which she always reported using the reporting system that she had been directed to use. She began to take frequent sick leave. On one occasion she was very anxious. Around April 2023 she asked her Nurse Unit Manager for a temporary reduction in hours. She asked to transition to a permanent role. She cited poor mental health. She was told they would see what they could do but she did not receive a response.
• Around the end of April 2023 Medacs contacted her by telephone and advised her that the host site no longer required her and her contract had been terminated with no notice.
• She moved interstate and worked as a mental health nurse.
• She then became homeless and could not hold a permanent job and her mental health deteriorated.
• On or around 6 February 2024, following in-patient treatment in Hobart, she saw her GP. The GP advised her that her diagnosed PTSD and associated symptoms of anxiety and panic attacks were likely from when she had worked as a mental health nurse at the Royal Hobart Hospital and due to the incidents that had occurred from 11 January 2023 onwards. This was the first time the worker became aware her symptoms and illness related to the incidents in question.
• On or around May 2024 the worker attempted to lodge her workers compensation claim with the Department of Health. She was advised by an injury management co-ordinator that because she was contracted to the Department she should submit the claim to Medacs Healthcare.
• On or around early May 2024 the worker attempted to lodge her workers compensation claim with Medacs.
• On 17 May 2024 the worker was advised by the Risk, Quality and Compliance Business Partner at RSS Global[1] to fill out a form and send it back to him [a copy of the form the worker was asked to fill out was not attached to the worker's statement].
• On 3 June 2024 the worker completed a workers compensation claim and emailed it with her initial workers compensation medical certificate to Medacs.
• She never received any workers compensation weekly payments despite submitting workers compensation medical certificates.
• On 27 August 2024 her claim was disputed. Allied Employment Group, Trading As Medacs denied they were her employer at the time of the incident. Until that date she was unaware that Medacs were not technically her employer as she had signed an employment contract with Medacs. Allied Employment Group advised Geoffrey Nathan Australia were her employer.
• Until that date the worker thought Geoffrey Nathan were the out-sourced payroll company that Allied Employment Group used to process payroll.
• After her claim was disputed on 27 August 2024 the worker engaged her solicitors.
• On 6 September 2024 she was advised that Geoffrey Nathan were technically her employer and was further advised to re-submit her claim to her employer. On 1 October 2024 she sent the relevant documentation to the employer via registered post to the employer's registered business address.
• Her claim for compensation was disputed on 24 December 2024.

1. The document the worker refers to as her employment contract with Medacs Healthcare was attached to the worker's statement. It is headed 'Medacs Healthcare' and commences:

Dear [the worker], > > Please see below your assignment schedule and confirmation for your upcoming agency nursing assignment through Medacs Healthcare.

Thereafter, details are provided under a number of headings including position and dates for the assignment, the client address and contact details, accommodation/expenses information and pay rates. Under the heading 'Payroll/Timesheet Information for This Locum Assignment':

You will be paid directly by Geoffrey Nathan upon receipt of a timesheet signed and authorised by Statewide Mental Health Services - Tasmania. Geoffrey Nathan process their locum payroll every Thursday. Timesheets must be received by Medacs by 5:00pm each Monday prior. Please forward your completed timesheet to Medacs Healthcare by email [email supplied].

Please let me know if you have any questions or email your acceptance for the above locum assignment and confirmation.

1. The employer says that there is a factual dispute in relation to the cause of the worker's claimed condition, and that this factual dispute is the basis for the first three grounds put forward in the s 81A referral.
2. In particular, the employer says it has been unable to substantiate that the alleged incident involving the patient on 11 January 2023 occurred, or that the occurrence of "numerous violent incidents" referred to in the claim form occurred.
3. The employer relies on the statement of Ms Davison, and in particular her evidence that the employer received no notice from either the worker or Medacs of any incident or injury, and that Medacs has advised that no incident on 11 January 2023 was reported at all by the worker.
4. The employer also says that the worker's evidence, that she moved interstate after her role at the Royal Hobart Hospital ended, worked and then became homeless and experienced a deterioration of mental health raises a further factual dispute about the cause of the worker's claimed condition.
5. The employer says it has been unable to obtain a full understanding of the worker's mental health history and she has refused to provide an authority to enable the employer to properly consider her relevant medical history.
6. In relation to the fourth ground of dispute, relating to an alleged failure to give notice of injury, the employer says the dates speak for themselves, and that the employer has been prejudiced in defending this claim because of the worker's failure to give notice of injury as soon as practicable under s 32(1)(a) of the Act. The employer says it knew nothing about the worker's claimed injury until October 2024, and it appears from the worker's statement and some materials annexed to that statement that the worker now has emails that apparently are no longer available to Medacs.
7. The employer further says that the worker's evidence does not address the factors referred to in s 37(1)(a) of the Act which might excuse a worker's failure to give notice of injury, and says that the evidence the worker puts forward does not address the entire gap between the date the injury is said to have been suffered and the time that the claim for compensation was given 18 months later (which the employer says also amounted to notice of the injury).
8. In relation to the fifth ground of dispute, the employer says also that the dates in the claim form speak for themselves, and the worker has not established that she would be able to rely upon the provisions of s 38(1) of the Act to excuse her failure to make a claim within six months.

1. In relation to the first three grounds of dispute, the worker says the employer's position that the worker did not suffer injury relies only upon the lay witness statement of Ms Davison. The worker says that Ms Davison's statement cannot be relied upon in support of the first three grounds of dispute because it is not expert medical opinion and the grounds of dispute ought to be disregarded.
2. In relation to ground four of the dispute, the worker refers to s 33(1)(b) of the Act which provides that notice of injury may be provided by a worker inter alia, to a person under whose supervision the worker is employed. The worker says that her witness statement establishes that she gave notice of the incident on 11 January 2023 immediately thereafter.
3. Additionally the worker says she notified her case manager at Medacs and filled out an incident report, and she refers to the email annexed to her statement where her case manager acknowledged receiving notification of the injury and receipt of the incident report. The worker says it is clear that sufficient notice was given to Medacs under s 33(1)(b) of the Act.
4. In relation to the question of prejudice under s 37(1)(b) of the Act, the worker says the employer has not sufficiently outlined that it has suffered any prejudice, because the worker's evidence is that she notified the relevant people at the appropriate time.
5. In relation to the fifth ground of dispute the worker refers to s 33A of the Act which requires:

Employer given notice of injury must inform worker of right to claim > > (1) An employer who is informed by a worker of an injury to the worker must, within 14 days, inform the worker, in the prescribed form, that the worker may have a right to make a claim for compensation in relation to the injury. > > Penalty: Fine not exceeding 10 penalty units. > > (2) Subsection (1) does not apply in relation to an injury if the employer is informed of the injury by the service on the employer of a claim for compensation.

6. The worker further notes that a failure by the employer to comply with s 33A amounts to a 'reasonable cause' occasioning a worker's failure to make a claim for compensation within six months (see s 38(1) and (2)(b)).
7. Further, in relation to the alleged failure to make the claim within six months the worker says that her statement is evidence that she was not aware of the relationship between her mental health injury and the incident at the Royal Hobart Hospital until she saw her general practitioner in 2024. She says her evidence also supports that she attempted to submit a claim for compensation to the Department of Health and Human Services initially, and that she was not aware that Medacs was not her employer until it disputed liability for her claim. She says otherwise her delay was due to 'other reasonable cause' within the meaning of s 38 of the Act, and in that regard refers to her general practitioner's advice that management of the worker's symptoms took precedence over initiating a claim for compensation.
8. In summary, the worker says that her evidence supports that the delay in making her claim was caused by her confusion over who was her employer. She says that this is a 'mistake' within the meaning of s 38(1) of the Act, and refers to the decision of State of Tasmania v Muir-Wilson [2001] TASSC 30 at [6]:

A mistake by the respondent as to the severity of her injury, or as to the likely longevity of its symptoms, would have been just as much a mistake as a mistake as to whether or not an injury had been suffered, or a mistake as to whether her neck injury was the cause of her upper limb symptoms. One can make a mistake in relation to a question of degree, just as one can make a mistake as to whether an event occurred, or as to whether a cause and effect relationship existed between an event and subsequent physiological symptoms. It is significant that s37(1)(a) does not say "reasonable mistake" but "mistake". When a failure to give notice at the appropriate time is occasioned by a genuine or honest mistake, it does not matter how reasonable or unreasonable a worker's mistake is.

9. A summary of the worker's position in relation to the dispute is that, firstly grounds one, two and three ought to be disregarded because there is no objective evidence; secondly, ground four ought to be disregarded because the worker gave notice of injury as required by s 32 of the Act, in accordance with s 33 of the Act; and thirdly, that the fifth ground of dispute ought to be disregarded because the worker was never notified of her right to make a claim, as required by s 33A of the Act, which amounts to a 'reasonable cause' for the failure to do so, which would excuse her under s 38(1) of the Act.
10. Finally, the worker notes that the Act is a beneficial legislation and should be construed in a manner than benefits the worker.

1. I reject the worker's submission that the first three grounds of dispute ought to fail because they are not supported by a medical opinion.
2. The employer initially raised a dispute that there had been an incident involving the worker and a patient on 11 January 2023, because it said it had not received any notification of such an incident from Medacs. The documents attached to the workers statement support her assertion that she did notify Medacs about that incident - but that appears to be at odds with the advice the employer says it received from Medacs that no incident was reported.
3. The documents attached to the worker's statement strongly suggest that she was involved in an incident with a mental health patient at the RHH, however, I accept the employer has established there are reasonable arguments about the extent to which that incident (or other incidents referred to by the worker) caused or contributed to the worker's claimed mental health injury, where the workers says that she worked as a mental health nurse on the mainland after her employment in Tasmania ended, and she then subsequently became homeless and experienced a deterioration in her mental health.
4. I have regard to the observation of Evans J in St Helens Oysters at [14]:

It is notorious that the genesis for conditions such as stress, anxiety and depression may be multifaceted. The causes may be many and varied and it can be very difficult to identify the most significant causative factor. In the context of litigation, a final determination as to the existence of such a condition and the causative role of any factor, almost invariably turns upon the adjudicator's assessment of the veracity and reliability of the complainant. Accordingly, when a worker claims to suffer from a condition of this nature in circumstances where there are a variety of potential causes for the condition, an employer may show a reasonably arguable case concerning liability by providing evidence of plausible potential causes that are inconsistent with liability.

5. I find that the employer has established that there is a reasonably arguable case to dispute liability for the worker's claim on the basis that it is arguable that causative factors other than the circumstances referred to by the worker in her claim documentation may have caused or contributed to the worker's claimed injury, but the extent to which that may have been so cannot be determined in s 81A proceedings.

Failure to provide notice of injury as soon as practicable - Ground 4

1. Section 32 of the Act requires a worker to give notice of injury to the employer as soon as practicable after the occurrence of the injury. Section 33 of the Act relevantly provides that notice of injury:

(b) shall be given to - > > (i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or > > (ii) a person under whose supervision the worker is employed; or > > (iii) a person designated for the purpose by the employer; or > > (iv) a person having authority or apparently having authority to receive such a notice on behalf of the employer;

2. The basis upon which the employer says there was a failure by the worker to give notice of injury is that the employer says that it received no notification of an injury, either from the worker or from Medacs at any time.
3. On the evidence presently before the Tribunal, it appears that notice of injury was given by the worker to the Nurse Unit Manager as soon as practicable, and the Nurse Unit Manager appears to be a person 'under whose supervision the worker was employed' within the meaning of s 33(1)(b)(ii) of the Act. It also appears that notice of the injury was similarly given very soon after the incident on 11 January 2025 by the worker to Ms Petkovski at Medvacs, who appears to have been a person 'apparently having authority to receive such a notice on behalf of the employer' within the meaning of s 33(1)(b)(iv) of the Act.
4. The employer has not established that there is a reasonable argument that the worker failed to give notice of injury as soon as practicable after the occurrence of the injury, and this ground of dispute fails.

Failure to make the claim within six months - Ground 5

1. On the face of the claim form and initial medical certificate, the worker's claim has not been made within six months of the date of injury.
2. Section 32 of the Act relevantly provides that a person shall not be entitled to compensation under the Act unless a claim for compensation is made within 6 months of the date of injury. Section 33 of the Act relevantly provides that a failure to make a claim within six months does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause.
3. Tasmania v Pilling [2020] TASSC 13 was concerned with a worker's alleged failure to give notice of injury, but the statement by Brett J at [43] applies similarly to an alleged failure to make a claim within the prescribed time:

There will be many cases where the nature of the deficiency of notice and the general circumstances of the case, without more, lead to the conclusion that there is a reasonable argument about the applicability of s 37. However, there will also be cases where the opposite is true, that is the circumstances suggest that the deficiency in notice is due to mistake, and prejudice is unlikely. It may also be that the circumstances suggest that the employer can be expected to have available to it evidence which will inform the considerations under s 37, if such evidence exists. For example, evidence relating to the question of prejudice will almost always be in the possession of the employer. In a case where the circumstances of the case appear to demonstrate the probability that the deficiency of notice has arisen from a mistake or other reasonable cause, the absence of any evidence of prejudice to the employer may justify a conclusion that the employer has not shown an arguable case that s 37 does not apply to the deficiency of notice. Of course, where the employer can demonstrate that there is a real issue about the cause of the deficiency, then that alone may establish a reasonably arguable case.

4. The relevant period within which the questions of mistake, absence from the State or other reasonable cause arise is the six month period within which the claim must be made: Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 at [33].
5. The worker has asserted that the first time she was told that her mental health condition was likely due to the incidents from 11 January 2023 onwards was on or around 6 February 2024. Whilst that may potentially be evidence of a 'mistake' - in that she may have been mistaken up until that time about the cause of her injury - the worker's untested assertion is not enough for me to be satisfied that there is a probability that the failure to make the claim within six months arose from a mistake.
6. The worker has indicated that she worked interstate for some time after April 2023. There is no evidence about how long she was actually absent from the State after that, and it is clear from her statement that her period of absence from the State did not cover the entire period of six months after the date of the alleged injury.
7. There is no evidence before me that would suggest the worker's failure to make a claim within the required period was because of some other reasonable cause arising in that time. Even though 'reasonable cause' includes, under s 38(2)(aa) of the Act, a failure by the worker's employer, when the employer is informed by a worker of an injury, to comply with s 33A, the employer's evidence here is that it never received any notice of injury prior to being served with the claim for compensation.
8. The employer has established that there is a reasonably arguable case to dispute the worker's claim under this ground of dispute.

1. I am satisfied that the employer has established that a reasonably arguable case exists concerning the liability of the employer to pay compensation to the worker in respect of her claim.
2. I make the following order:

Weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI of the Workers Rehabilitation and Compensation Act 1988 are not to be paid to the worker from the date of this order.

[1] It appears from materials relied upon that Medacs Healthcare is one of a number of brands under the portfolio of RSS Global.