Huon Aquaculture Pty Ltd v KM [2025] TASCAT 73

1. The worker's claim which is the subject of the s 81A referral was made on 5 September 2024. In her claim form, the worker described that she was checking fish nets on 18 September 2024 as part of her employment duties and she felt a pull in her lower back. She said she kept working, but after she stopped work she began to experience very bad muscle spasms.
2. The worker's claim was supported by an initial workers compensation certificate of capacity dated 19 August 2024. The certifying practitioner noted presenting symptoms of pain across the worker's lumbar spine, made a diagnosis of "disc pathology L4/5", and referred the worker to a neurosurgeon and a physician. The worker was certified to be incapacitated for work from 19 August 2024 to 26 August 2024.
3. The employer arranged for the worker to be independently assessed by Dr Jack Dale, who is a Consultant Occupational and Environmental Physician. The assessment took place on 17 September 2024, and Dr Dale produced a report dated 11 October 2024. It is this report that is central to the present issue.
4. It was Dr Dale's conclusion that the worker was suffering from non-specific lower back pain, but that the worker's employment was not the major or most significant factor that contributed to the worker's back condition.
5. The employer's dispute in relation to the worker's claim is based upon Dr Dale's opinion. The employer says that if Dr Dale's opinion was ultimately accepted at a final hearing, it is likely that the worker would be unable to successfully establish that the employer was liable to pay compensation to her in respect of her claim.

1. There is no evidence before the Tribunal about the following, but I understand the parties agree these matters:
   • The worker has two claims for compensation with the same employer. In addition to the claim for a back injury that is presently the subject of the s 81A referral, the worker had earlier made a claim for a knee injury which had been accepted by the employer.
   • When the insurer arranged for Dr Dale to see the worker for independent medical assessment it asked Dr Dale to undertake the assessment in relation to the worker's knee injury, and also in relation to her low back injury.
   • The insurer wrote to the worker and notified her about the appointment with Dr Dale. The insurer asked her to attend the appointment and advised her that the assessment was to be in relation to her knee injury.
   • The insurer also generated correspondence to the worker in similar terms, advising that the assessment was to be in relation to her back injury also, however that letter was inadvertently not sent by the insurer to the worker.
   • The worker was not at any time advised that she was being asked to attend the appointment with Dr Dale for any assessment of her back injury.
   • The worker attended the appointment with Dr Dale as scheduled on 17 September 2024.
   • As part of the assessment, Dr Dale conducted a physical examination that included examination in relation to the worker's claimed back injury.

1. The worker says:
   • Because the worker had not been advised that she would be attending Dr Dale for independent medical review of her back injury, she did not give informed consent to any medical examination or assessment in relation to that injury.
   • Unlike many other medical assessors, Dr Dale has not indicated in his report that he advised the worker of the nature and purpose of the assessment.
   • In the absence of the worker's informed consent, Dr Dale's examination of the worker in relation to her back injury was unlawful or improper.
   • Because the report produced by Dr Dale in relation to the worker's back injury was, in part, based on the unlawful or improper examination, the report ought therefore not be accepted into evidence as part of the employer's s 81A referral.
   • In the alternative, even if the Tribunal takes the employer's report into evidence, the s 81A referral should still be dismissed, because to do otherwise would be against the requirement that the Tribunal must act according to equity, good conscience and the substantial merits of the case: Section 79(c) of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act).
2. The employer says:
   • Dr Dale's report is an independent medical report, within the meaning of s 90A of the WRC Act.
   • Section 90D of the WRC Act sets out the circumstances in which an employer may rely upon an independent medical assessment in Tribunal proceedings.
   • Although s 90A refers to a worker being given notice of an assessment, and the reasons for the review, those things are irrelevant to the question of admissibility under s 90D.
   • Dr Dale's report is admissible under s 90D of the WRC Act, and ought to be accepted into evidence by the Tribunal in support of the employer's s 81A referral.
   • In relation to the question of the worker's consent, or lack thereof, the employer notes that Dr Dale took a history from the worker that included details about any past history of back pain, the circumstances surrounding the back injury that was the subject of her claim, and treatment related to her back. It is submitted that the worker should be taken to be aware that the appointment with Dr Dale was related to her claims for both knee injury, and back injury. On that basis, the worker could, at any time, have withdrawn her consent for any physical examination of her back, and refused to answer any questions in relation to her back injury.
   • Even if the Tribunal determines that the report was improperly obtained, it ought not to exclude the report as evidence.

1. Medical examinations and independent medical reviews of workers are governed by Division 1A of Part VII of the WRC Act including:

90A. Workers may be required to submit to independent medical reviews

(1) For the purposes of this Act, an independent medical review of a worker is a review, conducted by a single medical practitioner (other than a medical practitioner chosen by the worker) who has expertise in a field, or a part of a field, relevant to the worker's injury, and may include -

(a) one or more examinations of the worker; and

(b) a review of any diagnostic test results, or other medical records, in respect of the worker.

(2) If a worker claims compensation or is receiving weekly payments, the worker's employer, or the employer's insurer, may require the worker to submit to an independent medical review of the worker by a medical practitioner.

(3) A worker may only be required under subsection (2) to submit to an independent medical review if the employer or the employer's insurer -

(a) has discussed with the worker's primary treating medical practitioner the reasons why it is intended to have the review conducted; and

(b) has informed the worker, in writing, of the reasons why it is intended to have the review conducted.

(4) A worker who is required under subsection (2) to submit to an independent medical review by a medical practitioner -

(a) is to -

(i) submit, at a reasonable time, and at a reasonable place, of which the worker has been given reasonable notice in writing, to the review, including any examination conducted by the medical practitioner as part of the review; and

(ii) be taken to have given consent to the provision, to a medical practitioner nominated by the worker's employer, of any medical reports or records that relate to the injury to which the worker's claim for compensation relates; or

(b) is to, within 30 days, refer the matter under section 90C(2) to the Tribunal.

90D. Reliance on medical reports

(1) If a worker has submitted to an independent medical review under section 90A by a medical practitioner, a report in relation to the review, and any evidence of the medical practitioner, cannot be used as evidence in respect of a claim for compensation unless the report is served on the worker.

1. Both parties have referred to the principles which govern proceedings in the Tribunal, which are set out in s 79 of the TASCAT Act, as follows:

In any proceedings, but subject to the provisions of a relevant Act - > > (a) the procedure of the Tribunal is, subject to this Act, to be conducted with the minimum of formality; and > > (b) the Tribunal - > > (i) is not bound by the rules of evidence; and > > (ii) may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal, insofar as may be relevant to the proceedings; and > > (iii) may otherwise inform itself as it considers fit; and > > (c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.

2. Even though the Tribunal is not bound by the rules of evidence, both parties agree that the Tribunal may be guided by those rules. This is undoubtedly correct. Both parties refer to s 138 of the Evidence Act 2001, which relevantly provides:

(1) Evidence that was obtained - > > (a) improperly or in contravention of an Australian law; or > > (b) in consequence of an impropriety or of a contravention of an Australian law - > > is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. > > (2)... > > (3) Without limiting the matters that the court may take into account under subsection (1) , it is to take into account - > > (a) the probative value of the evidence; and > > (b) the importance of the evidence in the proceeding; and > > (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and > > (d) the gravity of the impropriety or contravention; and > > (e) whether the impropriety or contravention was deliberate or reckless; and > > (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and > > (g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and > > (h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law.

1. As a starting point, I reject the submission that s 90D(1) of the WRC Act is the only criterion upon which admissibility of a report following independent medical review will be assessed. Although s 90D prohibits reliance on a report following independent review where the worker has not been served with a copy of the report, mere service of the report on a worker will not mean that the report will automatically be accepted into evidence in proceedings.
2. The provisions of the WRC Act governing independent medical reviews have been considered by the Workers Rehabilitation and Compensation Tribunal in Swick Mining Services v M [2012] TASWRCT 25 (Swick). What can be taken from that decision is that a worker will be under an obligation to attend an independent medical review if an employer complies with the prerequisites set out in s 90A(3) of the WRC Act. Where an employer does not comply with those prerequisites, the worker is under no obligation to attend a scheduled review, but may, nonetheless, elect to do so. In those circumstances a report that comes into existence as a result of the worker opting to attend the review appointment may be taken into evidence by the Tribunal.
3. It follows from the observations in Swick that an election by a worker to attend an independent medical assessment can only properly be made where a worker understands what the assessment is about.
4. I accept that at the time the worker attended the assessment with Dr Dale as scheduled, she had only been advised that the assessment was in relation to the knee injury for which she had made the earlier claim for compensation. There is no evidence that Dr Dale had any discussion with the worker about the nature or scope of his assessment when it started, or at any time as it progressed.
5. I also accept the worker's submission that on the face of the material presently before me, the worker did not give informed consent to Dr Dale in relation to his physical examination relating to her back condition. This is because she was apparently not given information at any stage, either by her employer, or Dr Dale that there was to be an assessment of her back condition.
6. The employer has submitted that because Dr Dale took a history from the worker that included a history of her back injury and symptoms, it must have been obvious to the worker that the assessment was being conducted in relation to both of the injuries for which she had made claims for compensation, and the worker had the option of withdrawing her consent and leaving the assessment. I do not accept this submission.
7. One reason that medical practitioners are required to obtain informed consent from their patients is because those patients entrust themselves to medical practitioners for physical examinations involving physical contact that would not otherwise be acceptable. There is a considerable element of trust involved. This is one reason why the requirement for informed consent is held to a high standard.
8. In the same way, many workers who attend independent medical assessments and undergo physical examinations at the request of the employer place the same level of trust in the assessor. A worker will not necessarily understand the reasons behind questions that are put to them, or the purpose of particular physical examinations.

1. The report of Dr Dale dated 11 October 2024 will not be accepted into evidence as part of the employer's s 81A referral. This is for two reasons.
2. The first reason is that it would be unfair for the employer to be permitted to rely upon the report.
3. Section 90A of the WRC Act clearly contemplates that a worker is to be given reasons why a medical review is to be conducted in relation to the worker's claim. Such reasons cannot be provided without reference to the claim itself. Where, as in the present case, the worker wrongly understands that the review is focused upon a particular injury, the information provided in the course of the assessment in relation to such things as history, treatment, and symptoms may be incorrectly focussed on, and directed towards, that injury.
4. The obligation to accurately advise a worker about the reasons for medical review in relation to a particular claim is hardly an onerous one. I accept that the failure to advise the worker in this particular case was inadvertent, but it would be unfair to the worker if the employer was permitted to rely on a report that is based on an assessment of an injury that the worker was not aware was being assessed.
5. Secondly, Dr Dale's physical examination of the worker in relation to her back condition was apparently performed in the apparent absence of any informed consent. It follows that Dr Dale's conclusions expressed in the report that were, at least in part, based on information that was improperly obtained, and ought not be accepted into evidence. The desirability of admitting the report does not outweigh the undesirability of admitting it.
6. The onus of establishing the existence of a reasonably arguable case under s 81A of the WRC Act rests with the employer. The s 81A referral is based upon Dr Dale's report, and it is clear that there will be no reasonably arguable case to dispute the worker's claim if Dr Dale's report is not admitted into evidence. Although the employer will have lost the chance to dispute liability for the claim under s 81A because of the time limits that apply, the employer still has the option of referring the ultimate question of its liability for the claim to the Tribunal under s 81A(5) of the WRC Act if it obtains further evidence to support an argument in that regard.
7. The employer has conceded that if the report of Dr Dale is not accepted into evidence, there is no reasonably arguable case.
8. I find that a reasonably arguable case does not exist concerning the employer's liability for the worker's claim for compensation for low back injury dated 5 September 2024.

1. Because there is no reasonably arguable case to dispute the worker's claim, I order, pursuant to s 81A(3)(a) and (b) of the Workers Rehabilitation and Compensation Act 1988 that the employer is to make weekly payments and pay the cost of benefits under Division 2 of Part VI from the date of the s 81A hearing.