Indical Bioscience GmbH v BE [2025] TASCAT 153

3. The initial prescribed certificate indicated a current clinical diagnosis of:

Cervical spine degeneration, Medial and lateral R epicondylitis, R carpel tunnel syndrome.

4. The employer elected to dispute liability to pay compensation to the worker and referred the dispute to the Tribunal pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).

1. By an email to the worker from Ms QM, head of human resources of the employer, on Tuesday 20 May 2025 at 10:50pm CEST being 6.50am Thursday 21 May 2025 AEST the worker was served with notice from the employer setting out the grounds of the dispute in compliance with s 81A(1)(a) and (b) of the WRC Act.
2. I was satisfied on the evidence before me that as the worker, in her claim form of 26 February 2025, had consented to the receipt of communications about her claim electronically, As she had also responded to the email from Ms QM of 10.50PM CEST on 21 May 2025 by an email at 10.54am AEST on 21 May 2025, the employer has complied with its service obligations pursuant to ss 81A(1)(a) and (b) of the WRC Act.
3. Although I was satisfied that the employer had complied with its obligation to provide notice of the referral to the worker, I was not initially satisfied that the Tribunal's jurisdiction to determine the referral as it was not clear that the employer had met its referral obligations pursuant to s 81A(1)(c) of the WRC Act.
4. On the material before me Tribunal, it was unclear whether the employer's referral had been lodged with the Tribunal by email to the practice direction indicated email address of wrc.personalcompensation@tascat.tas.gov.au at 9:13am CEST (being 5:13pm AEST), on 21 May 2025, as contended by the employer. The alternative hypothesis was that the referral had been formally lodged with the Tribunal on 4 June 2025, this being the date indicated in the Tribunal's correspondence to the parties advising of the listing of the s 81A hearing. This Tribunal correspondence was dated 10 June 2025.
5. It was critical for the Tribunal to determine whether the referral date was by midnight on 21 May 2025 or 4 June 2025 as if this date was determined to be 4 June 2025 the Tribunal was without jurisdiction to hear the substantive s 81A referral as the 84 day period prescribed in s 81A(1), had expired at midnight on 21 May 2025 (AEST).
6. After hearing reasoned arguments from the employer's counsel, and also hearing from the worker during the hearing on 24 June 2025, and after considering the evidentiary material filed in support of this issue, I found that the employer's referral had been received by the Tribunal by email to the wrc.personalcompensation@tascat.tas.gov.au email address at 9:13am CEST, being 5:13pm AEST, on 21 May 2025.
7. On the evidence, it appears that the employer's marking of this email of 21 May 2025 as "private", had caused that email to not be treated as being received by the Tribunal due to a Microsoft email protocol preventing the sharing of emails marked with a sensitivity of "private", if they are attached to shared mailboxes. This is what the wrc.personalcompensation@tascat.tas.gov.au mailbox apparently is.
8. Although this issue had been identified by the Tribunal before 21 May 2025, it was not until after this date, that the applicable Tribunal Practice Direction was updated to advise that emails with referrals pursuant to s 81A were not to be marked with a sensitivity of "private" when being sent to the wrc.personalcompensation@tascat.tas.gov.au mailbox.
9. As a consequence of these findings, the Tribunal has jurisdiction to deal with the employer's referral pursuant to s 81A as it was made within the 84-day period prescribed in s 81A of the WRC Act.
10. After determining I had jurisdiction to hear the employer's s 81A referral, at the hearing on 24 June 2025, as the employer bore the onus of proof (Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38), the employer's counsel put into evidence before the Tribunal the following material:
    • Copy workers compensation claim for dated 25 February 2025;
    • Copy initial workers compensation certificate of capacity of Dr Paul Scotland dated 19 February 2025;
    • Subsequent workers compensation certificate of capacity of Dr Timothy Andrewartha dated 3 April 2025;
    • Subsequent workers compensation certificate of capacity of Dr Tanya Ronaldson dated 5 May 2025;
    • Medical assessment and report of Dr Kalesh Seevnarain dated 12 May 2025.
11. Referring to these documents, the employer's counsel submitted that in accordance with the formulations detailed in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 and in the decision of Estcourt J in the Full Court of the Supreme Court of Tasmania decision of Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2, there was sufficient material before me to satisfy me to the requisite standard that a reasonably arguable case to dispute liability to pay compensation to the worker pursuant to the WRC Act had been established.
12. The employer's counsel also referred to the oft cited passage of Pearce J in Vos Construction and Joinery Pty Ltd v Norton-Smith at [5]:

The Act does not require the employer's case about liability be strong or compelling, but the case that the claim may ultimately be rejected must be reasonably arguable.

13. When putting the employer's case, counsel for the employer placed significant reliance on the contents of the medical report of Dr Seevnarain dated 12 May 2025, making particular reference to the content of that report where Dr Seevnarain opined that the worker's condition was not thought to be work related, it not being caused by her work nor travel.
14. In response to the submissions, the worker indicated that she had an objection to the admissibility into evidence in the s 81A referral of Dr Seevnarain's report of 12 February 2025 on the basis that it was not compliant with Division 1 of Part VII of the WRC Act.
15. As the employer's counsel had not been made aware of this argument prior to this time, to be procedurally fair to both the employer and the worker, I made directions for the parties to provide written submissions regarding the admissibility or otherwise of Dr Seevnarain's report in the s 81A hearing
16. In accordance with these directions, by 15 July 2025 I had received the employer's counsel's submissions, the worker's submissions, and the employer's counsel's reply submissions.

1. In both its written submissions of 1 July 2025 and its reply submissions of 15 July 2025, copies of additional documents not filed with the s 81A referral were provided to both the worker and the Tribunal.
2. Although this material was not lodged by the employer with its referral to the Tribunal pursuant to s 81A(2)(b) of the WRC Act, pursuant to s 81A(2AA) of the WRC Act, I exercise my discretion to allow this material to be tendered by the employer and considered for the purposes of this determination. I do so as it appears it relates to directly to the issues raised by the worker in her submissions, and the worker has had an opportunity to consider these documents and to make any reply to them as she considers appropriate, which she has done. Thus, procedural fairness obligations to her have been met.
3. These documents were as follows:

(i) Email from Ms QM to Ochre Health Medical Centre (Smithton) dated 21 May 2025 enclosing the report of Dr Seevnarain;

(ii) Email from Ms QM to the worker (copied to TT) dated 21 May 2025 confirming that the report had been sent to Ochre Health Medical Centre (including a relevant email from the worker in the chain);

(iii) Email from Ms QM to the Tribunal and copied to the worker dated 21 May 2025 enclosing the s 81A referral, along with the report of Dr Seevnarain (also provided with the s 81A referral).

(iv) Email from Ms QM to Ochre Heath Medical Centre dated 8 May 2025 entitled "request for documents for IME", attaching worker's consent to release of documentation.

1. It was the employer's counsel's submission that these materials confirm:

(i) The report of Dr Seevnarain was, contrary to the worker's submissions at the hearing, and as the worker was aware, served on her treating medical practitioner within 7 days of receipt as required by s 90B(3)(a).

(ii) That s 90B(4) required the treating medical practitioner rather than the employer to provide the report to the worker.

(iii) That the worker had been served with the report of Dr Seevnarain alongside the s 81A referral. It was the employer's counsel's submission that this satisfies the only provision of Division 1A that would have any effect on the employer's reliance on that report, being the requirement in s 90D(1) of the WRC Act.

1. The employer's counsel further submitted that there is no provision of the Act that disentitles an employer from relying on a medical report at a hearing before the Tribunal if the precise terms of s 90B have not been met.
2. By referencing the report of Dr Seevnarain, the employer's counsel asserted that it was apparent that the worker submitted to the assessment leading to the preparation of that report. Further support for this consent is indicated in the email from Ms QM to Ochre Health Centre (Smithton) which included a copy of an email from the worker to the employer dated 7 May 2025, which confirmed that she consented to her GP materials being provided to Dr Seevnarain as part of his assessment (paragraph 23(iv) above).
3. The employer's counsel submitted that for these reasons, it was not entirely clear that the report produced by Dr Seevnarain was in fact a report arising from a worker submitting to an independent medical review under s 90A. The employer's counsel further submitted, for the reasons outlined above, that the terms of Division 1 of the WRC Act had been met in any event.
4. In its written response of 15 July 2025, the employer's counsel also provided a copy of an email received by the employer's Australian based solicitors from Dr Seevnarain's rooms indicating that his report of 12 May 2025 was received on 19 May 2025. As the worker has acknowledged, she received that report on service of the s 81A referral on 21 May 2025, which was clearly less than 7 days later. The employer's counsel submits that the requirements of the WRC Act in relation to service of the medical report are therefore met.
5. In conclusion, the employer submitted that there is no statutory or other prohibition on the employer relying on the report of Dr Seevnarain within the s 81A referral.

1. Although the worker agreed that she received a copy of Dr Seevnarain's report with the s 81A notice to her on 21 May 2025, she desires it to be excluded from consideration in the s 81A hearing as a consequence of it not meeting the requirements of Division 1 of Part VII of the WRC Act.
2. The worker specifically indicated:

(i) She had not received Dr Seevnarain's report within 7 days, contrary to s 90B(3);

(ii) The employer did not meet the requirements of s 90B(4) as that provision required her treating medical practitioner, rather than the employer, to provide her with a copy of that report;

(iii) That there had been a breach of s 90B(3)(a) as a consequence of the employer or insurer not discussing with the worker's treating medical practitioner the reason why it intended to have the review conducted.

1. Within her submissions the worker raised further matters, including for example the employer's non-compliance with s 77AB of the WRC Act.
2. These latter matters go beyond the scope of my directions given at the hearing on 24 June 2025, Ass the employer has indicated, many of the issues raised by the worker in her submissions relate to the substantive s 81A referral, which is discussed later in this decision.

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. > > (5) Subject to subsection (6), a worker is not required to submit to more than one independent medical review in any 3-month period. > > (6) Despite subsection (5), a worker is required to submit to an independent medical review if - > > (a) the worker has suffered multiple injuries or the worker's injury requires the consideration of medical practitioners who are specialists in different fields or aspects of the injury; and > > (b) the review is conducted by a medical practitioner specialising in a different injury, or a different field or different aspect of the injury, to the previous practitioner who conducted a review in the 3-month period. > > (7) If a medical practitioner conducting an independent medical review reports that any medical or surgical treatment specified by the practitioner will terminate or shorten the period of incapacity of the worker to whom the report relates, the following provisions apply: > > (a) subject to paragraph (b), the worker must submit to that treatment; > > (b) if the worker notifies the employer, not later than 14 days after the date on which a copy of the practitioner's report has been provided to the worker in accordance with section 90B(4), that the worker, after consulting with the worker's primary treating medical practitioner, is not satisfied with the report, the worker must submit to an examination by another medical practitioner selected by the worker who may be, but is not required to be, the worker's primary treating medical practitioner; > > (c) the employer or the employer's insurer is to pay for the examination referred to in paragraph (b); > > (d) if the report, provided in accordance with section 90B(2) , of the medical practitioner who makes an examination in accordance with paragraph (b) is in agreement with the report provided under section 90B(1) by the medical practitioner conducting the independent medical review, the worker must as soon as practicable submit to the treatment specified in the last-mentioned report. > > ... > > 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. > > (2) If a worker has been examined under section 90A(7)(b) by a medical practitioner chosen by the worker, a report in relation to the examination, 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's employer. > > (3) If a worker has been examined, otherwise than under section 90A(7)(b) , by a medical practitioner chosen by the worker, a report in relation to the examination, 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's employer.

2. As was stated by Senior Member Jack in Huon Aquaculture Pty Ltd v KM [2025] TASCAT 73 at [15], the principles which govern proceedings in the Tribunal are set out in s 79 of the Tasmanian Civil and Administrative Tribunal Act (TASCAT Act) as follows:

79. Principles governing proceedings > > 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.

3. As was further stated by Senior Member Jack in Huon Aquaculture Pty Ltd v KM at [16]:

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.

4. The provision of the TASCAT Act and of the Evidence Act 2001 referred to in Huon Aquaculture Pty Ltd v KM are relevant considerations for me in this decision.

1. As was indicated by Senior Member Jack in Huon Aquaculture Pty Ltd v KM at [18]-[19]:

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. > > 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.

2. On the evidence before me, it is clear that the worker attended the telehealth assessment with Dr Seevnarain on 8 May 2025 and that she was aware that the assessment related to her workers compensation claim injury of right arm radiculopathy with parathesis intermittently, right elbow pain and right wrist pain. The worker clearly gave informed consent to this assessment, noting that she also gave consent to her employer to allow her treating medical practitioners to provide medical certificates and reports to Dr Seevnarain for the purposes of his independent assessment of her.
3. Within Dr Seevnarain's report there is clear reference to the materials he received from the employer for use in this assessment and his reporting.
4. There is no statutory prohibition on an employer in a s 81A dispute referral relying on a medical report which does not comply with the requirements of Division 1 of Part VII of the WRC Act. Even if I am wrong as to that, I do not accept the worker's assertion that the report from Dr Seevnarain has not come into existence properly in accordance with ss 90A and 90B of the WRC Act, and that as a consequence, pursuant to s 90D, it cannot be used in evidence in respect of her claim for compensation.
5. The worker has admitted being served with a copy of Dr Seevnarain's report in the email to her from Ms QM at 5:13pm CEST time on Wednesday 21 May 2025 being included with the material required by way of service pursuant to s 81A(1)(a) and (c) of the WRC Act. As the report was clearly received by the employer on 19 May 2025, the workers receipt of it on 21 May 2025 was within the 7 day period described in s 90B(3) of the WRC Act.
6. The evidence before me does not satisfy me that the requirements of ss 90A(3)(a) and (b) have not been complied with, which matters not as the worker freely attended the telehealth assessment with Dr Seevnarain.
7. Even if s 90B(4) of the WRC Act was to apply, there is clear evidence before me that the employer had provided the worker's primary medical practitioner with a copy of Dr Seevnarain's on 19 May 2025, and it was a matter for the treating medical practitioner, not the employer, to provide a copy of that report to the worker.
8. For all of these reasons, I do not consider that the worker attended the telehealth appointment with Dr Seevnarain without informed consent, nor am I satisfied that it would be unfair to the worker for the employer to be permitted to rely upon that report in the s 81A referral.
9. The worker's application to exclude Dr Seevnarain's report from consideration in this s 81A referral is dismissed.
10. As was noted previously in this decision, in the employer's counsel's reply to the worker's submissions dated 15 July 2025, the employer's counsel has indicated that there is otherwise a dispute in relation to the contents of the worker's submissions, most of which are new submissions, not made at the s 81 hearing, and which go beyond the submissions that the parties were permitted to make by email.
11. The employer's counsel also submits that these matters are not relevant to the Tribunal's determination of whether there is a reasonably arguable case. The employer's counsel maintains the same arguments it made during the hearing in that regard.
12. I agree with these submissions.
13. The material which does not address the admissibility or otherwise of Dr Seevnarain's report of 12 May 2025 are not relevant to the determination of the s 81A referral before me.

1. As I have allowed Dr Seevnarain's report of 12 May 2025 to be included in the evidence upon which this s 81A determination is based, on all of the evidence before me I am satisfied applying the tests enunciated in St Helens Oysters Pty Ltd v Coatsworth [2007], Bradshaw v Tasmania Networks Pty Ltd [2020], that the employer has discharged its onus of establishing that there is a reasonably arguable case to dispute its liability to pay compensation to the worker.
2. Within the report of Dr Seevnarain, there is clear evidence of his opinion that the injury to the worker's right arm, being the basis of her claim for compensation, does not have a work related cause.
3. In the absence of contradictory medical evidence, this is sufficient for me to make a finding that a reasonably arguable case to dispute liability to pay compensation exists.

1. Pursuant to ss 81A(3)(c) and (d), compensation by way of weekly payments 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 by the employer to the worker.