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[2009] TASSC 99
appellant. Appeal allowed; Tribunal determination set aside; pursuant to s81A(3)(c) and (d) the Court determined that compensation and costs of benefits payable under Division 2 of Part VI of the Act are not...
The Supreme Court allowed the employer's appeal. On the limited documentary material before the Tribunal, there was enough evidence to show it was reasonably arguable that the worker's condition had a non-work-related cause and, alternatively, that any work-related component arose from reasonable administrative action. The Tribunal therefore erred in law in ordering interim payments; the Court set aside that determination and ordered that payments are not to be made by the employer under s81A(3).
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Headway Support Services (the employer) appealed a Tribunal determination that had ordered the employer to commence payment of weekly workers compensation and associated benefits to Caroline Wickham (the worker) after she presented with an acute stress reaction on 21 May 2009. The Tribunal had applied s81A(3) of the Workers Rehabilitation and Compensation Act and concluded the employer did not have a "reasonably arguable case" for disputing liability, so ordered payments. The employer appealed to the Supreme Court of Tasmania, arguing that the Tribunal erred in law because the documentary material before it in fact compelled a conclusion that a reasonably arguable case existed (paras 1–3, 17).
No linked legislation citations have been extracted yet.
At first instance there was no oral evidence. The worker's claim was supported by a claim form and two medical certificates (Dr Whelan on 21 May, Dr Straatsma on 1 June). The worker alleged an acute stress reaction triggered during a confronting workplace conversation on 21 May. The employer's documentary material included a CEO report (25 May) and contemporaneous statements from staff involved in the meeting (paras 4–6, 10–11). The CEO's report referenced a recently diagnosed medical condition and prior sleep disturbance, and one medical note recorded symptoms evident on 6 March 2009 (paras 6–8).
Blow J found the Tribunal had overlooked material that could plausibly point to a non-work-related cause and had made factual findings about the reasonableness of the administrative action at the workplace on the untested documentary evidence. The Supreme Court held that, on the material available, a reasonable fact-finder could have found that the employer had an arguable case on two independent bases: (1) employment was arguably not the major or most significant factor contributing to the worker's condition; and (2) alternatively, the condition arguably arose substantially from reasonable administrative action taken in a reasonable manner by the employer (paras 8, 13–15). The appeal was allowed, the Tribunal's determination set aside, and the Court determined that payments were not to be made by the appellant under s81A(3)(c) and (d) (para 17).
Two interconnected legal principles drove the decision.
First, s81A(3) sets an objective test: where the employer disputes liability and refers the matter, the Tribunal must decide whether it considers that a reasonably arguable case exists on the employer's part. If the material before the Tribunal compels a conclusion that a reasonably arguable case exists, but the Tribunal holds otherwise, that is an error in law (paras 3, 16). The Court relied on St Helens Oysters Pty Ltd v Coatsworth and earlier authorities for that proposition (para 3). The consequence is that a judicial review-style examination of whether the Tribunal misapplied s81A(3) is appropriate where the material plainly supports the employer.
Second, on the s25(1A)(c) limb, an employer is not liable for mental illness 'which arises substantially from reasonable administrative action taken in a reasonable manner'. Blow J emphasised that the statutory standard is not a high standard of solicitousness: the action need not be worker-friendly nor carried out with the utmost sensitivity (para 13). The task of the commissioner hearing an interlocutory s81A application is not to finally resolve disputed facts but to assess whether a fact-finder properly could find the employer's account arguable from the untested documentary record (paras 13–14).
Applying these principles, the Court concluded there was material capable of supporting two arguable defences. The CEO's note and medical records suggested a pre-existing condition and symptom onset before 21 May, which could support an arguable case that employment was not the major causal factor (paras 6–9). Separately, the contemporaneous accounts of the workplace conversation could plausibly be characterised as reasonable administrative action taken in a reasonable manner rather than as bullying or egregiously insensitive conduct (paras 10–14). Because the Tribunal had instead resolved those disputed factual questions against the employer on the untested materials, Blow J concluded there was an error in law (paras 13–16).
Before this decision, the governing principles were already articulated in earlier Tasmanian decisions. St Helens Oysters established that the s81A(3) 'reasonably arguable case' test is objective and set limits on the Tribunal's role when determining whether to order payment pending final hearing. The line of authorities (Protective Security, Tanase, Walker) set the framework that interlocutory determinations under s81A are interim and may be reviewed on appeal if the Tribunal's decision was legally erroneous (para 3).
Headway Support Services v Wickham applies those principles to emphasise practical limits on Tribunal fact-finding at the s81A interlocutory stage. The decision reinforces that where only documentary material is before the Tribunal and that material contains evidence that could plausibly found a defence (either non-work causation or s25(1A)(c) administrative-action exclusion), the Tribunal must not resolve disputed facts definitively against the employer. The outcome strengthens prior authority by applying the 'compelled conclusion' standard to concrete factual scenarios: pre-existing medical notes and contemporaneous management statements can be sufficient to establish an arguable case.
After this decision, practitioners should recognize that a thin but coherent documentary account that supplies an alternative causal explanation or a plausible characterisation of administrative action as reasonable will frequently be enough to require the Tribunal to find an arguable case exists, thereby delaying or avoiding interim payments under s81A(3). The decision clarifies that 'reasonableness' for s25(1A)(c) is a lower threshold than requiring delicacy or solicitude.
Para 3: "The 'reasonably arguable case' test is an objective test." Translation: The Tribunal must ask, objectively, whether there is some real argument the employer can advance on the evidence, not whether the Tribunal thinks the employer will ultimately win.
Para 7: Quoted Tribunal finding that "the employer has not put before the Tribunal any medical evidence ... to show that the worker's illness may arguably have a cause unconnected to the employment." Translation: The Tribunal thought the employer had no evidence suggesting a non-work cause. Blow J then shows that view overlooked material in the record.
Paras 6–9: Discussion of CEO's report and medical certificates noting prior symptoms and a diagnosis. Translation: The Court gives weight to contemporaneous documents that suggest the worker had medical issues before the incident relied on, and that those documents can support a plausible alternative explanation.
Para 13: "It is not necessary for the action to be worker-friendly, or that it be taken with the utmost sensitivity and delicacy." Translation: For the statutory exclusion, the workplace action only needs to be reasonable, not gentle or compassionate. Robust managerial action can be 'reasonable' in legal terms.
Para 13 (later): "The question for him was whether a fact-finder properly could, not should, make findings ..." Translation: At an interlocutory s81A stage, the right enquiry is whether a reasonable adjudicator could plausibly accept the employer's version on the available documents; the commissioner must not make final credibility rulings on untested material.
This decision is relevant whenever:
An employer, within the statutory 84-day window, disputes liability and refers the matter to the Tribunal under s81A, and the Tribunal must decide whether to make interim payments.
The Tribunal proceedings occur on documentary material only (no oral evidence), and that material includes contemporaneous documents that may support an alternative explanation for the worker's condition (for example, prior medical notes, reports indicating earlier symptom onset, or employer records revealing a pre-existing non-work condition).
The employer's defence includes reliance on the s25(1A)(c) exclusion (that the illness of the mind arose substantially from reasonable administrative action taken reasonably), and the documentary record provides a plausible characterisation of the workplace conduct as administrative action that could be reasonably taken in the circumstances.
Where the Tribunal, in such an interlocutory setting, is tempted to make final factual findings on credibility or the reasonableness of conduct, this precedent restrains such findings unless the documentary record can be said not to permit a reasonable fact-finder to reach a contrary conclusion.
In short, the precedent triggers whenever the employer's documentary material, even if thin, legitimately supports an arguable non-work causal account or an arguable administrative-action defence on which a reasonable fact-finder could rely.
This judgment itself applies and follows prior Tasmanian authorities (notably St Helens Oysters at paras cited in this decision). The decision reiterates and refines the approach to s81A interlocutory determinations by applying the 'reasonably arguable case' test to concrete documentary scenarios. The Supreme Court treated prior authorities as binding guideposts and applied them consistently (para 3).
The judgment does not report subsequent appellate treatment of Headway Support Services v Wickham. Practitioners should note that the decision sits within a developing Tasmanian line of authorities concerning s81A procedure, and it should be read alongside the cases cited in para 3 (Protective Security, Tanase, Walker, St Helens Oysters) to appreciate how the 'compelled conclusion' and 'objective test' principles are deployed. For how later courts treat this specific decision, users must check subsequent reported decisions and updated case law databases beyond the text of this judgment.
How much documentary material is 'enough' to be 'reasonably arguable'? Blow J accepted a relatively thin record in the present facts was sufficient; but there will be borderline cases where the Court must assess whether documentary material supports more than a fanciful alternative. Future cases will refine quantitative and qualitative thresholds.
How should commissioners manage credibility when documentary material is mixed or ambiguous? The judgment instructs commissioners to ask whether a reasonable fact-finder could reach a contrary view, but practical guidance on procedural management, for example directing limited oral testimony at an interlocutory stage, remains undeveloped in this decision.
The interplay between s3(2A)'s 'major or most significant factor' threshold for causation and the evidential standard at s81A(3) will generate recurring disputes. Where medical opinion is equivocal, the line between an arguable defence and a weak defence will be fact-dependent; subsequent decisions will be required to map that boundary more precisely.
The scope of 'reasonable administrative action taken in a reasonable manner' is broad. Although Blow J's ruling lowers the threshold by rejecting a requirement of sensitivity, cases presenting more borderline managerial conduct will test the outer reaches of what statutory reasonableness encompasses.
Finally, while this judgment instructs that interlocutory determinations are interim and that s81A does not finally adjudicate liability, the practical effect on case management, costs, and the timing of final hearings invites further procedural guidance from tribunals and appellate courts.
Practitioners should treat Headway Support Services v Wickham as a clear statement that, at the s81A interlocutory stage, documentary material that gives a plausible alternative causal account or supports a reasonable-characterisation defence will commonly be sufficient to bar interim payments by establishing a reasonably arguable case for the employer (paras 8, 13–15). Check later Tasmanian and appellate authority for further refinement and for jurisdictional variations.
CITATION: Headway Support Services v Wickham [2009] TASSC 99
APPEALED FROM: Wickham v Headway Support Services [2009] TASWRCT 14
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Procedure - Procedure before hearing - Whether "reasonably arguable case exists".
St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90; (2007) 17 Tas R 43, followed.
Judgment Number: [2009] TASSC 99
HEADWAY SUPPORT SERVICES v CAROLINE SANDRA WICKHAM
1 This appeal concerns a dispute between a worker, Caroline Wickham, and her employer, Headway Support Services, as to whether the worker is entitled to weekly payments of workers compensation and the payment of medical expenses and other benefits.
2 On 21 May 2009, in the course of her employment, the worker had a conversation with two senior staff members. She was very unhappy with their attitudes towards her. She took the rest of the day off, saw a doctor, obtained a medical certificate, and claimed compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") on the basis that she was incapacitated for work as the result of an acute stress reaction. The employer decided to dispute liability for the payment of compensation. It referred the matter to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") under the Act, s81A. There was a hearing before the Tribunal. The employer contended that the worker's medical condition did not arise out of or in the course of her employment. It also contended that her medical condition arose substantially from reasonable administrative action taken in a reasonable manner by it in connection with her employment, and that compensation was therefore not payable because of the provisions of s25A(1)(c). The learned commissioner held that the employer did not have a reasonably arguable case, and ordered the payment of compensation pursuant to s81A(3)(a) and (b). The employer contends that it did have a reasonably arguable case, and that the learned commissioner erred in law in holding that it did not.
3 In summary, the relevant provisions of the Act provide as follows:
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If, in any employment, a worker suffers a "disease" arising out of and in the course of that employment, and to which the employment "contributed to a substantial degree", the employer is liable to pay compensation, subject to certain exceptions: s25(1)(b). The employment "contributed to a substantial degree" only if the employment is the major or most significant factor: s3(2A).
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Compensation is not payable in respect of an illness of the mind or a disorder of the mind which arises substantially from reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment: s25(1A)(c).
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As a general rule, an employer is required to commence making weekly payments of compensation to a worker following the receipt of a claim for compensation: s81.
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An employer who disputes liability to pay compensation must, within 84 days of receiving a claim for compensation, serve the worker with written notice that it disputes liability, inform the worker of the reasons for disputing liability, and refer the matter to the Tribunal: s81A(1).
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The Tribunal must then decide whether it considers that a reasonably arguable case (for the employer) exists as to the payment of compensation (weekly compensation or benefits). If it considers that the employer has a reasonably arguable case, as to weekly compensation or benefits, the Tribunal must determine that compensation or benefits are not to be paid by the employer. Otherwise, it must order the employer to make payments: s81A(3). The "reasonably arguable case" test is an objective test: ; at 50.
4 No oral evidence was given at the hearing before the learned commissioner. The worker relied on a claim form and two medical certificates. The claim form asserted that she stopped work at 1pm on 21 May 2009, and that her medical condition was first noticed or identified that afternoon. She asserted that a confronting and unprofessional meeting occurred, during which senior staff were dismissive of a request she made regarding medication training that she was undertaking. She referred to dizziness, an extreme dry mouth, instant and severe headache, and an inability to focus on work. A medical practitioner, Dr Whelan, provided the first medical certificate that day. According to that certificate, she diagnosed an acute stress reaction, and the symptoms were sleep disturbance, low mood, headaches and dizziness. According to that certificate, the worker stated that the condition occurred under circumstances that included increasing pressure at work, very little support, verbal bullying, written bullying, no gratitude, suicide of a client, and no counselling. The doctor said that the condition was consistent with the stated cause.
5 Another medical practitioner, Dr Straatsma, provided a certificate saying that she had examined the worker on 1 June 2009. Her diagnosis was "Anxiety Reaction". According to her certificate, there were symptoms of ongoing anxiety, the worker stated that the condition was caused by an incident on 21 May 2009, and the condition was consistent with the stated cause. The certificate referred to a background of chronic work stress over many months resulting in ongoing anxiety symptoms.
6 On the hearing of the appeal, counsel for the employer submitted that there was material before the learned commissioner that compelled a conclusion that the employer had an arguable case, on the basis that the worker's employment was arguably not the major or most significant factor contributing to her medical condition. He relied on the following:
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The material before the learned commissioner included a report from the employer's chief executive officer dated 25 May 2009. In that report, that man recounted a conversation with the worker a few days before she went to the doctor. He wrote:
"I asked her how she was going? Caroline presented well, but advised that she had not been sleeping as she was recently diagnosed with a medical condition and was having to see neurologists which was very disturbing for her. Caroline told me the medical term, but I have forgotten the name."
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The sleep disturbance referred to by Dr Whelan in her report of 21 May could not have resulted from the incident that occurred that afternoon.
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Dr Whelan's report said that the worker stated that her condition was caused by "a disease, symptoms of which became evident on 06/03/09".
7 In his reasons for his determination, the learned commissioner wrote:
"... it is noted that the employer has not put before the Tribunal any medical evidence or indeed any other information to show that the worker's illness may arguably have a cause unconnected to the employment."
Evidently the learned commissioner overlooked the CEO's comment about the recently diagnosed medical condition, and Dr Whelan's references to sleep disturbance and symptoms having become evident on 6 March.
8 In my view it is arguable that, if the recently diagnosed medical condition about which the worker spoke to her CEO had been work-related, she would have said so, and he would have made a note of that. It is therefore arguable that that condition was not work-related. That hypothesis is consistent with the symptoms of the condition having become evident on 6 March 2009, and with one of those symptoms being sleep disturbance. An acute stress reaction to the events of 21 May could not have become evident on 6 March, and could not have resulted in the sleep disturbance noted by Dr Whelan on 21 May.
9 At a final hearing of a claim for weekly compensation and benefits under the Act, the worker bears the onus of proof. The evidence about the recently diagnosed medical condition, sleep disturbance, and symptoms having become evident on 6 March is all arguably inconsistent with the worker's case. Although the evidence favourable to the employer on the causation issue was thin, in my view it was strong enough to give the employer an arguable case for the purposes of s81A.
10 The evidentiary material before the learned commissioner included two reports concerning the conversation or meeting of 21 May - one written by the employer's CEO, who was not present at the time, and one written by the worker's supervisor, Kim Webber, who was. She held the position of program facilitator. The other person present at the conversation or meeting was the employer's client services manager, Peter Gillon. According to the CEO's statement, the worker had undertaken a medication course, she did not pass that course "due to literacy issues", and she had a meeting with Mr Gillon and Ms Webber "to discuss a study timetable and literacy support".
11 Ms Webber's description of the conversation or meeting was as follows:
"I approached Peter Gillons office, Caroline was in there. Pete nodded, I assumed to indicate permission to enter. Caroline was finishing a conversation about her noncompliance with the literacy/numeracy component of the medication course she is on. I was able to understand the gist of the conversation, as I had, had a telephone conversation with Caroline about this topic. Also had spoken to Stephen Noone on Caroline's behalf.
Caroline went on to say to Pete, that she would like to arrange a meeting with Fran and Pete, to set up a study timetable for her medication assignments. I interjected, looked to Pete who, then turned back to his computer. I took this to mean I should pursue the conversation as I am the workplace supervisor for the staff competing [sic] the course.
I stated to Caroline, I was her supervisor, and reminded her that I had informed her of this a number of times. Caroline replied, quite tersely, 'yes I know, but your [sic] busy'. I felt uncomfortable with Caroline's body language and tone, as she leaned towards me and made the statement through gritted teeth. I reminded her she had a booked time at 2.30pm, and that I had set up her administration observation that lunch time with Moira, I went on to again go through her activity for the first week. I again went over how to access policy, where to locate the paper copies. Caroline returned to the floor."
12 The learned commissioner made findings to the effect that the conduct of Ms Webber and Mr Gillon could not even arguably be found to constitute reasonable administrative action taken in a reasonable manner because their conduct involved insensitivity and rudeness in the following respects: (1) Mr Gillon permitted Ms Webber to enter the room and listen to the conversation between him and the worker without reference to the worker; (2) Ms Webber interjected when the worker was speaking to Mr Gillon; (3) Mr Gillon abandoned the conversation and resumed work on his computer; (4) Ms Webber took over the conversation; and (5) Mr Gillon played no further part in the meeting despite obvious tension.
13 In my view the material before the learned commissioner did not compel a conclusion that the conduct of Mr Gillon and Ms Webber could not be regarded as reasonable. For s25(1A)(c) to apply in relation to administrative action, it is only necessary that the action be reasonable and that it be taken in a reasonable manner. It is not necessary for the action to be worker-friendly, or that it be taken with the utmost sensitivity and delicacy. It was no part of the learned commissioner's role for him to make findings as to disputed questions of fact: St Helens Oysters Pty Ltd v Coatsworth (supra) at 50. The question for him was whether a fact-finder properly could, not should, make findings that certain administrative action was reasonable, and was taken in a reasonable manner. That question had to be determined on the basis of untested documentary evidence, without the benefit of the sort of thorough background evidence that one would ordinarily expect at a defended final hearing.
14 In my view the conclusion of the learned commissioner was concerned more with the manner in which the administrative action was taken, rather than the reasonableness of the administrative action itself. The action taken appears to have comprised Mr Gillon withdrawing from the conversation and leaving it to the worker's supervisor to deal with her, and the supervisor making it clear that the worker should deal with her, not Mr Gillon, and at a time that had been previously appointed, not then and there. I think the administrative action itself can arguably be characterised as reasonable, and do not take the learned commissioner to have suggested otherwise. As for the way in which the action was taken, I think it is arguable that the conduct of the two senior staff members should be regarded as casual and firm, rather than rude and insensitive, and therefore reasonable rather than unreasonable. It is significant that the report of the CEO contained material suggesting that, prior to receiving the claim for compensation and the first medical certificate, the management were not aware of any suggestion that the worker was troubled by pressure at work, lack of support, bullying, lack of gratitude, or the suicide of the client. If that was correct, the taking of administrative action in a robust manner could be characterised as reasonable more readily than would otherwise have been the case.
15 In my view, for the reasons stated above, the material before the learned commissioner compelled a conclusion that the employer had an arguable case on two bases:
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that the worker's employment was arguably not the major or most significant factor contributing to the medical condition that resulted in her absence from work; and
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alternatively, if her medical condition arose substantially from the events when she was at work on 21 May, that it arguably arose substantially from reasonable administrative action taken in a reasonable manner by the employer in connection with her employment, and was arguably therefore not compensable by reason of s25(1A)(c).
1">16 It follows that he erred in law in holding otherwise.
17 I therefore order that the appeal be allowed and the determination of the Tribunal be set aside, and I determine that pursuant to s81A(3)(c) and (d) compensation and the costs of benefits payable under Division 2 of Part VI of the Act are not to be paid by the appellant.
Headway Support Services
Wickham [2009] TASSC 99
(2007) 17 Tas R 43
(2006) 16 Tas R 87
(2004) 13 Tas R 354
Appeal allowed; Tribunal determination set aside; pursuant to s81A(3)(c) and (d) the Court determined that compensation and costs of benefits payable under Division 2 of Part VI of the Act are not to be paid by the appellant (para 17).
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Determinations and orders under s81A(3) are interim ones. The unsuccessful party may fully contest the question of liability before the Tribunal in a later hearing: Walker v J & A Freeman Building Services [2006] TASSC 90; (2006) 16 Tas R 87 at 98.
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If any party to a proceeding before the Tribunal is aggrieved by a determination or order "in point of law", that party may appeal to this Court: s63(1). If the material before the Tribunal compelled a conclusion that a reasonably arguable case existed, but the Tribunal held otherwise, there was an error in point of law: Protective Security Pty Ltd v Bedelph [2004] TASSC 128; (2004) 13 Tas R 354; Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100 at pars21 - 26; St Helens Oysters Pty Ltd v Coatsworth (supra) at 53 - 54.