Workers compensation - Dispute as to whether weekly payments validly terminated by return to work and earnings - Ambit of referral under s 42 of the Workers Rehabilitation and Compensation Act 1988 - Whether summons for medical records should issue

Workers Rehabilitation and Compensation Act 1988;

Tasmanian Civil and Administrative Tribunal Act 2020

H v Colony 47 Inc. [2012] TASWRCT 36;

Tanya Maree Goscombe v Cadbury Schweppes Pty Ltd [1993] TASSC 35;

Mosaic Support Services (Tas) Inc v Woolley [2023] TASSC 27;

Gulf Industries Pty Ltd & MMI Insurances Limited v Gregory Ernest Barnett [1996] TASSC 75;

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; One Stop Metal Recycling Pty Ltd v Young [2017] TASSC 41;

Cripps v Machos Pty Ltd [2017] TASSC 21;

F v Howrah Plumbing [2017] TASWRCT 33;

Sandy Bay Developments v Loring Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145;

Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2017] TASSC 58

The decision has been anonymised for the purpose of publication.

1. The worker has referred a claim for compensation to the Tribunal pursuant to s 42 of the Workers Rehabilitation and Compensation Act 1988 (the Act) in the following terms:
   1. For determination of his entitlement to weekly payments and expenses payable pursuant to Division 2 of Part VI of the Act.
   2. That the employer is to pay the workers costs of and incidental to this referral.
2. In addition, the referral sets out background to the matters to be determined:

1. In the week leading up to May 2023, the worker suffered an injury to his back in the course of his employment. A workers' compensation claim was made and liability for that claim was accepted. > > 2. The worker has remained either partially or totally incapacitated for work since May 2023. The worker has workers' compensation certificates for this period. > > 3. During the worker's return to work, he was subjected to bullying and suffered a new psychological injury. A claim was made in August 2024. That claim was disputed pursuant to 81A and payments were ceased. > > 4. Notwithstanding the disputed bullying claim, the worker remains incapacitated by way of his physical injury. He is therefore entitled to receive compensation, provided he has an ongoing incapacity. > > 5. The insurer has argued a termination of the worker's entitlement to weekly payments for his physical injury occurring on 26 May 2024, pursuant to section 86(1)(b).

3. The referral is listed for hearing commencing on 30 June 2025.
4. Two preliminary issues have arisen between the parties:

(a) the ambit of the issues to be determined on the referral; and

(b) whether a summons filed by the employer should issue.

1. The relevance of the materials sought on the summons will in part be determined by the ambit of the issues on the referral.

1. The worker contends that the issues arising on the referral are whether there was a lawful termination of the worker's weekly payments of compensation pursuant to s 86(1)(a) or (b) of the Act, and if not then the consequential reinstatement of weekly payments.
2. The employer contends that the scope of matters arising on the referral is broader. It does not dispute foundational liability, but contends that ambit of the referral includes the following additional issues:

(a) whether the worker has an incapacity for work;

(b) if so, whether the incapacity is total or partial;

(c) the cause of the incapacity;

(d) the rate of compensation which the worker is entitled to; and

(e) the period or periods of which the worker is entitled to payment of weekly compensation.

1. The background facts include the following:
   • On 4 May 2023 the worker suffered a back injury.
   • On 15 May 2023 the worker made a workers compensation claim. The claim was not disputed and the worker received payments of compensation.
   • The worker participated in a graded return to work, returning to full hours in November 2023. A medical report by Dr Carlin White, an occupational and environmental medicine registrar, addressed to the worker's general practitioner dated 27 November 2024 refers to the worker "achieving full hours in November 2023, but still unrestricted duties". It appears from the grammar of the surrounding paragraph, the balance of Dr White's report and the material generally that the reference to "unrestricted duties" is a typographic error and should refer to "on restricted duties". I have proceeded on that basis.
   • The employer says that weekly payments ceased in May 2024 pursuant to s 86(1)(b). No notice was provided to the worker at that time. A spreadsheet of payslips provided by the worker indicates that the s86(1)(b) termination occurred in respect to the fortnightly pay period commencing 29 April 2024, although it appears from that spreadsheet and copies of the payslips provided by the worker that he received long service leave payments during that pay period and then commenced receiving fulltime ordinary time payments of wages in the pay period commencing 13 May 2024. Correspondence from the employer's practitioners to the worker's practitioners asserts that a s 86(1)(b) termination occurred on 26 May 2024, which is the end of the pay period commencing on 13 May 2024. For the purposes of this determination it is sufficient that I am satisfied that the employer ceased payment of weekly payments in or about May 2024.
   • On 1 August 2024 the worker obtained a workers compensation medical certificate certifying as to total incapacity from that date in respect to a psychological injury. On 13 August 2024 the worker made a new workers compensation claim for anxiety and stress.
   • The claim in respect to the psychological injury was disputed pursuant to s 81A of the Act and on 15 November 2024 an order reflecting s 81A(3)(c) and (d) was made by consent. The worker has not subsequently pursued a separate claim for compensation in respect to the psychological injury.
   • The employer has not paid any weekly payments of compensation since the order of 15 November 2024.
   • Following May 2024 until the claim for the psychological injury the worker received ordinary time weekly earnings of $1,886.70. The worker contends that the correct workers compensation weekly payment for the purposes of s 86(1)(b) at that time was $1,893.37, which is greater than his actual earnings, and that therefore there was no valid termination. I note that in the pay period commencing 8 July 2024, which was the last full pay period immediately before the pay period in which he made the new claim for the psychological injury, he received $1,957.38 per week, which appears to reflect an increase in his hourly rate from $49.65 to $55.51.
   • The worker contends that he remains incapacitated for work by reason of the physical injury and that he has continued to provide certificates of partial or total incapacity to the employer. I infer that those certificates were provided during the period that the worker returned to normal hours to support restrictions on his duties. The certificates were not before the Tribunal.
   • During the conciliation process the parties were not able to agree on the scope of the s 42 referral. At the conclusion of the conciliation process on 19 February 2025 the conciliator's referral to hearing notes the issues to be determined in the following terms "86(1)(b) termination 86(1)(a) Referral s42 scope to be determined".
   • On 13 December 2024, prior to the initial teleconference for the conciliation process, the worker's practitioners sent an email to the Tribunal asserting that the referral concerned only a question of law in respect to s 86(1)(b), that it did not require evidence from witnesses and that the issue was an "all or nothing" dispute. On the same date the worker's practitioners wrote to the employer's practitioners making what the letter described as a Calderbank offer, proposing that the employer concede the referral. The letter was included in material filed by the worker prior to the directions hearing. Noting that it was labelled "Calderbank offer" I did not look at the letter until the hearing, at which time both parties were content for me to receive it. The employer's response to the letter on 20 December 2024, the date of the initial teleconference, included an assertion that the s 42 referral had a broader scope than contended by the worker, including the five issues noted earlier in these reasons. That point of dispute has been maintained between the parties since.

1. Section 86 of the Act provides:

86. Cases in which employer may terminate or reduce payments > > (1) Except in pursuance of a determination made by the Tribunal under section 88 (2) , an employer may, subject to this section, terminate or reduce a weekly payment made to a worker only where - > > (a) the payment is in respect of total incapacity and the worker has returned to work; > > (b) the worker is in receipt of the weekly payment in respect of partial incapacity and is receiving weekly earnings in excess of the amount upon which the amount of such weekly payment was determined; > > (c) a medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury; or > > (d) . . . . . . . . > > (e) a worker's entitlement to weekly payments has expired as provided by section 69B(2E) . > > (2) A certificate referred to in subsection (1) (c) shall specify the grounds upon which the opinion expressed in it is given. > > (3) An employer who, for the reasons specified in subsection (1) (c) , (d) or (e) , intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker - > > (a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and > > (b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1) (c) , a copy of that certificate. > > (3A) A notice referred to in subsection (3) (a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination. > > (4) A worker who has been served with a notice under subsection (3) (a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination. > > (5) An employer who terminates or reduces a weekly payment otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

2. Section 86(1) provides four circumstances in which an employer may unilaterally terminate or reduce weekly payments of workers compensation. Terminations or reductions may otherwise occur by order of the Tribunal, for example pursuant to s 69(8), s 88(2) and s 81A(5).
3. Section 86 only provides one express provision for referral challenging a termination, in s 86(4) in respect to terminations pursuant to s 86(1)(c). The power to terminate in that provision rests on certification by a medical practitioner that the worker has wholly or substantially recovered from the effects of the work injury. A section 86(4) referral must be made within 60 days from the date of termination. After the expiration of that period a worker may still pursue their claim for compensation, but by way of a s 42 referral: H v Colony 47 Inc. [2012] TASWRCT 36.
4. In Gulf Industries Pty Ltd & MMI Insurances Limited v Gregory Ernest Barnett [1996] TASSC 75 Zeeman J considered that on a s 86(4) referral the then Workers Rehabilitation and Compensation Tribunal did not have the jurisdiction to reinstate payments at a reduced rate reflecting the worker's retained capacity. At [24] to [25] his Honour said:

24. Section 86 provides special procedures whereby an employer may terminate a weekly payment being made without the need to obtain an order from the Tribunal. A worker has a right to a continuation of a weekly payment until an employer lawfully terminates pursuant to that section, or the termination is authorised by an order of the Tribunal pursuant to a specific provision of the Act (see Freemasons Homes of Southern Tasmania v Greenwood A41/1996). An employer has the choice. He may rely upon s86 which, in the absence of a reference by the worker under s86(4), may result in there being a termination or reduction without the matter ever coming before the Tribunal for determination. Alternatively, the employer may apply to the Tribunal for an order authorising the termination or reduction of a weekly payment. Section 88 is the provision which expressly so provides and, by force of s86(1), it is only a determination under s88(2) which authorises a reduction or termination of a weekly payment (see Viney v Roney Management Pty Ltd A18/1996 at 3). Section 42 ought not to be read so as to augment the jurisdiction of the Tribunal conferred by s88 because that would be contrary to the clear intention expressed by s86(1). The second appellant was unable to avail itself of s88 because a weekly payment was not being made to the respondent at the time that it made its application (see Freemasons Homes of Southern Tasmania v Greenwood (supra)). It follows that the Tribunal had no jurisdiction to entertain the second appellant's application. > > 25. If an employer wishes to have a weekly payment reduced on the basis that total incapacity has ceased and there remains partial incapacity for work, then the employer should apply under s88. If an employer asserts that there no longer is any incapacity, it need not utilise s86 but may apply under s88, in which event the Tribunal would need to determine whether there is any incapacity and, if there is, whether it is total or partial incapacity. If an employer takes advantage of s86(1)(c), then it must accept that the consequence of a failure to satisfy the Tribunal that termination is justified will be that it is required to continue to make a weekly payment on the basis of total incapacity even though only partial incapacity remains.

5. Accordingly, determination of a s 86(4) referral is an all or nothing determination. That reflects the fact that a termination under s 86(1)(c) is made on the basis of whole or substantial recovery from the effects of the work injury. In that circumstance the worker would no longer experience any incapacity as a result of the work injury: see T_anya Maree Goscombe v Cadbury Schweppes Pty Ltd_ [1993] TASSC 35 at [37] in respect to the first limb of s 86(1)(c) and Mosaic Support Services (Tas) Inc v Woolley [2023] TASSC 27 at [15]- [19] in respect to the second limb. In contrast, a termination pursuant to s 86(1)(a) and (b) is not triggered by assessment of the effects of the injury or the workers capacity, but by either return to work or the amount of weekly earnings the worker receives. In either circumstance the worker may continue to experience a partial incapacity as a result of the work injury notwithstanding that it does not have an economic consequence: Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2 per Mason, Wilson, Deane and Dorson JJ at [13]. Following termination under s 86(1)(a) and (b), if the worker has an uninterrupted period of partial incapacity which fluctuates, so reducing his capacity to earn, the entitlement to week payments will re-engage: One Stop Metal Recycling Pty Ltd v Young [2017] TASSC 41. Notably, s 86(3) requires notice to be given by an employer who intends to terminate or reduce a weekly payment pursuant to s 86(1)(c) and (e), and s 86(4) sets a limitation period for disputing the termination, but neither of those requirements applies to s 86(1)(a) and (b) reductions and terminations.
6. Whether or not there was a lawful termination pursuant to s 86(1)(a) or (b), issues concerning the extent of capacity may still arise. The worker conceded in his submissions that if he is successful capacity may be a relevant consideration, and it would necessarily be so in determining the rate at which weekly payments are to be reinstated and the periods for which they may be reinstated. If the worker is unsuccessful and the termination was valid, then given that the termination depends on return to work or earnings rather than capacity, it does not preclude the possibility that, even though the termination was valid, the worker subsequently experienced loss of earning power as a result of his incapacity, so triggering an entitlement to the resumption of weekly payments.
7. In Cripps v Machos Pty Ltd [2017] TASSC 21, albeit in considering a s 42 referral following a finding of a reasonably arguable case pursuant to s 81A rather than a case where foundational liability was not in issue, Blow CJ pointed out that the issues between parties are not defined by pleadings, saying at [13]:

It seems strange that the learned Chief Commissioner said at [33] that "it was not asserted on behalf of the worker that he had a partial incapacity for work ...". The worker was seeking weekly payments on the basis that he had been totally incapacitated at all material times. There are no pleadings in the Tribunal. Section 49(1)(b) of the Act requires a proceeding before the Tribunal to "be conducted with as little formality and technicality ... as the requirements of this Act and a proper consideration of the matters to be resolved permit". It was certainly not necessary for the worker's counsel to tell the Tribunal that, if the Tribunal did not accept that the worker was totally incapacitated, weekly payments were sought on the basis of a partial incapacity. That was so obvious that it went without saying.

8. The reference to s 49(1)(b) is to a now repealed section of the Act, but it is mirrored in s 10(1)(f) and s 79(a) and (c) of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act).
9. In F v Howrah Plumbing [2017] TASWRCT 33, the Workers Rehabilitation and Compensation Tribunal considered an application by a worker to restrict the issues arising on a s 88 referral to the determination of the rate of weekly compensation, while the employer contended that issues of capacity were also enlivened. The Chief Commissioner cited Cripps v Machos Pty Ltd in reaching his conclusion that it was preferable that all issues arising under the s 88 referral be determined.
10. Section 42 requires that a claim be referred to the Tribunal in an approved form, but does not require that grounds be provided. The approved form requires that the matter to be determined be identified, but does not require that grounds or particulars be provided. In practice, it is a common useful practice for particulars to be set out in a referral. In Sandy Bay Developments v Loring [1991] TASSC 34, the Full Court considered the ambit of issues raised in a planning appeal where the relevant legislation did not require grounds to be set out in the notice of appeal. The Court determined that an appellant is not required to provide and adhere to grounds: at [28] and [86] to [87], but that the appellant can be limited to grounds provided: [37] to [39], and that the Tribunal in that case was not obligated to go outside the issues raised by the parties: [7], [36], [85], [88] and [92]. The basis for limiting the appellant to grounds related to procedural fairness and sufficiency of notice of the appellant's case.
11. The referral in this case is for expressly framed as for determination of the worker's entitlement to weekly payments and relevant expenses and costs, although the issues raised by the parties focus on weekly payments. The referral sets out a background, but does not on its face limit the scope of the referral to determination of whether there was a valid termination pursuant to s 86(1). Section 86(1)(b) is raised in the referral to identify the employers opposition to the worker's assertion of an entitlement based on ongoing incapacity.
12. Paragraph 4 of the background set out in the referral expressly refers to an alleged entitlement of the worker to receive compensation "provided he has an ongoing incapacity".
13. I am satisfied that the referral raises the issues advanced by both parties. The worker points to a lack of any expert evidence by the employer in respect to capacity, but that is an evidential matter not a matter which restricts the scope of the referral.
14. In the circumstances it is not necessary for me to make any order or direction as to the ambit of the referral. The parties have been on notice as to each other's position since 20 December 2024, at the start of the conciliation process. They have since confirmed those positions in their respective statements of facts issues and contentions. The hearing is almost three months hence. I observe, consistent with the approach of the Court in Sandy Bay Developments v Loring, that if either party sought to expand the issues beyond those identified, depending on the circumstances, issues of procedural fairness may arise.

1. The summons filed by the employer is directed at the worker's general practitioner's medical practice and seeks the production of medical records using a fairly standard formulation. The worker opposes the issue of the summons, contending that incapacity is not in question and that the summons is fishing.
2. The employer, in correspondence with the Tribunal, raised a concern as to whether objection may be made to the issue of the summons as opposed to production once the summons issues. Section 104(1) of the TASCAT Act provides that the Tribunal "may, on the application of a party to proceedings...issue a summons requiring a person...to produce evidentiary material". The use of "may" means that pursuant to s 10A(1)(c) of the Acts Interpretations Act 1931 the power to issue a summons must be construed as discretionary. I am satisfied that I do not have to wait for the summons to issue to deal with the worker's objection, and that the balance of convenience favours determining whether the discretion to issue the summons should be exercised before it issues, rather than whether it should be set aside after issue.
3. The employer contends that the medical records are relevant to the issue of capacity, and the cause of any incapacity. As explained above those matters are issues arising on the referral.
4. The test for determining the validity of a subpoena issued in civil proceedings is apparent relevance. In Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [63]- [69] Bell P observed that documents sought on a subpoena need only have apparent relevance to the issues in dispute, documents properly sought may not ultimately turn out to be relevant, and if the documents are apparently relevant and the ambit of a subpoena is not oppressive to comply with it should not be set aside.
5. In Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2017] TASSC 58 [7] and [15] Blow CJ observed that the applicant for a subpoena is obliged to identify the legitimate forensic purpose for which production of documents is sought, but it is sufficient that the material support has an apparent relevance to the issues in the proceedings, in the sense that it could possibly throw light on the issues. His Honour observed that a summons may not be used for the purposes of fishing, which he identified as a party "endeavouring, not to obtain evidence to support its case, but to discover whether it has a case at all".
6. I am satisfied that the workers GP medical records are apparently relevant to the issues of the workers capacity for work and the cause of any incapacity, may throw light on the issues and may assist the employer's case.
7. Accordingly I make the following direction:
   1. The summons addressed to the Practice Manager, My Clinic Plus filed by the employer on 12 March 2025 is to issue.