KI v The State of Tasmania

1. The worker's claim for compensation in relation to a psychological injury was made on about 13 November 2020. In her claim form the worker said that she had suffered the injury on 26 February 2020 and that her condition was first noticed on 7 November 2019. When asked in the claim form to give details of what happened, the worker wrote:

Workplace violence on 07-11-2019. > > Bullying from 08-11-2019 to 25/2/2020 and workplace violence on 26/2/2020.

2. The initial workers compensation medical certificate that supported the claim was dated 4 November 2020, and the certifying practitioner provisionally diagnosed the worker to have suffered an Adjustment Disorder with Anxiety, which was a new condition. The certifying practitioner noted, under the heading 'Stated Cause' that the worker had said her condition had been caused by incidents which occurred in November 2019 and on 4 March 2020 where she was verbally abused by a colleague on both occasions. The certificate noted, under the heading 'Past history of similar injury or comments relevant to condition':

November 2016 previous episode of verbal abuse and threatening behaviour from another colleague.

3. The employer successfully disputed liability to pay compensation to the worker in respect of her claim.
4. Several months later, in August 2023, the worker referred her claim to the Tribunal under s 42 of the Workers Rehabilitation and Compensation Act 1998, (WRC Act). In respect of the injury for which the claim for compensation was made in November 2020, the worker sought determinations in relation to her entitlement to compensation by way of weekly payments pursuant to s 69, benefits under Division 2 of Part VI of the WRC Act, and a lump sum payment for whole person impairment under s 71. The worker also filed a separate referral under s 71 of the WRC Act in April 2024 in respect of her entitlement to compensation for whole person impairment and an assessment of that impairment.
5. The worker, in January 2024, filed and served a list of documents. That list of documents included medical records from the worker's general practice as at 15 May 2023. As explained below, those records cover the period from January 2020.
6. Statements of facts and contentions have also been exchanged between the parties.

1. Expert witness reports have been exchanged. The worker relies upon a report from Dr Evenhuis, dated 26 August 2022. The employer relies upon a report from Dr Lake, dated 19 January 2024. Both Dr Evenhuis and Dr Lake are Consultant Psychiatrists.
2. Dr Evenhuis took a medical history from the worker that included long term hypersomnia, and the development of a neurological condition in about 2017 that had not received a formal diagnosis. Additionally, the worker had been diagnosed in 2022 as having Autistic Spectrum Disorder (ASD). There had been a past episode of Depression in 2013 in the context of a marital separation.
3. The worker advised Dr Evenhuis that difficulties that led to the current claim for compensation began in November 2019 when a co-worker asked her to take a call whilst she was busy, and the co-worker then "went off at her". There were other issues where calls were not put through to her, and she was ignored. The co-worker and another had a loud conversation outside the worker's office, she asked them to move on, and the co-worker went "off his nut". The workplace became hostile and unpleasant. Further issues arose in relation to the worker working from home, she was treated differently to other workers. Although she made a complaint in writing, it was not investigated. The worker told Dr Evenhuis that there was an investigation in relation to her claim for compensation, which concluded that the worker had herself been a bully and behaved inappropriately. The worker gave Dr Evenhuis a history of significant difficulties associated with her return to work after her claim was disputed by the employer, including issues with leave, and pay.
4. In relation to the worker's previous claims for compensation, the worker told Dr Evenhuis she had made a claim for compensation when she had been bullied by a co-worker, who had been subsequently sacked. The worker had three months off work, and bullying exacerbated a chronic pain condition. The worker could not remember making another claim, but was aware that she had apparently done so.
5. Dr Evenhuis diagnosed the worker to have a chronic adjustment disorder with mixed anxiety and depressed mood. The worker was assessed not to meet the criteria for panic disorder, Generalised Anxiety Disorder or Major Depressive Disorder. He noted the underlying and pre-existing diagnosis of ASD, which he considered likely explained the worker's obsessionality. Dr Evenhuis commented:

She has previously experienced reactive low mood but does not provide a clear history of underlying major depressive disorder.

6. In terms of causation, Dr Evenhuis considered that workplace events were the major contributor towards the worker's chronic adjustment disorder.
7. Dr Lake took a similar history from the worker in relation to the events from about November 2019, and the worker's medical conditions. By the time Dr Lake saw the worker for assessment, it was Dr Lake's opinion, diagnostically that the worker met the criteria for Major Depressive Disorder. Dr Lake also considered that the worker's employment was the major or most significant contributing factor in relation to the worker's psychological symptoms and diagnosis, notably workplace bullying and harassment from 2019, and alleged difficulties around working from home.
8. In terms of past compensation claims, Dr Lake noted the first claim was in November 2014, regarding aggressive behaviour from a co-worker, and then another claim in April 2015 was made, which described that the worker was "being forced to work in an area differently she worked post contrary to medical certificate previously provided to the Department".

1. The application in relation to the issue for a summons seeks all clinical notes, records and reports from the worker's general practitioner in relation to the claim for compensation made in November 2020, but additionally any clinical notes, records or reports concerning any psychological conditions that the worker has been treated for at the general practice.
2. The worker says that the worker's general practice records had been discovered in the list of documents provided by the worker to the employer, and the request for a summons is superfluous.
3. In that regard, the employer says that the discovered documents to date include only the worker's medical records from January 2020 onwards, and that it is appropriate that all historical medical records concerning the worker's psychological or psychiatric health and treatment be available to the employer, as they may be relevant to the referrals.
4. In support of the application for the summons, the employer says that the issues it will put before the Tribunal at a final hearing will include:
   • The extent to which the employment was the major or most significant contributing factor if the worker is found to have suffered an injury which is a disease, or an 'extended definition' injury as contemplated by s 3 of the WRC Act;
   • If the worker is determined to have suffered the injury on 26 February 2020, the employer will say:
   • the worker failed to give notice of injury as soon as practicable as required by s 32(1)(a) of the WRC Act;
   • the worker failed to make a claim for compensation with respect of the injury within six months as required by s 32(1)(b) of the Act;
   • the worker's injury is attributable to her own serious and wilful misconduct.
   • If it is found that the worker suffered injury in or about September 2020, the employer will contend that the worker failed to give notice of injury as soon as practicable as required by s 32(1)(a) of the WRC Act
   • Whether s 25(1A)(c) and/or (d) apply, so that the worker is not entitled to compensation.
5. The employer says that the Tribunal will be required to make findings in relation to particular facts, including the nature of the worker's injury, when the injury occurred, and the cause or causes of the injury, in the context of the question of whether the employment was the major or most significant contributing factor to the injury.
6. The employer also says that depending on the outcome of the Tribunal's factual determinations about the nature, time and cause of the worker's injury, the Tribunal will need to determine whether; the worker gave notice of injury to the employer as soon as practicable; made the claim for compensation within six months of the occurrence of the injury; and whether the injury is attributable to the worker's serious and wilful misconduct. The Tribunal will also potentially need to determine whether the worker's condition arose substantially from reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment and/or whether it arose substantially from a decision of the employer based on reasonable grounds not to award or provide a benefit in connection with the worker's employment.
7. The employer says that for the Tribunal to be able to make findings about all of the necessary issues, it must appropriately consider the history of any psychological conditions experienced by the worker, including her awareness about the effects of any psychological or psychiatric symptomatology that she had experienced at any time prior to the events which she now says have caused her condition that is the subject of the claim.
8. On that basis the employer says that as the worker has been a long term patient at her general practitioner the historical records of that practice as they relate to the worker and her relevant condition and symptoms are one of the best sources of evidence to allow that consideration to occur.

1. The employer's application to the Tribunal is for the worker to make discovery of all documents in her possession, custody or power relating to worker's compensation claims she made in or about 2014 and 2015 respectively. That application is made on the basis that the previous claims for compensation both concerned psychological conditions, and are, on the employer's position, relevant in a number of respects to the present claim and the employer's defence of that claim.

1. In relation to the summons, the worker does not object to the first category of documents sought - that is, medical records and the like relating to the worker's condition that is the subject of the claim for compensation dated 13 November 2020, and that the worker has already made discovery of all her medical records from January 2020 to May 2023, which had been released to the worker by her general practitioner.
2. The worker does object to the issue of a summons to her general practice seeking the release of any clinical notes, records or reports concerning any psychological conditions for which she had been treated at the practice. The objection is made on three grounds.
3. Firstly the worker says the documents in question are not relevant to any issue before the Tribunal, and not sought for any legitimate forensic purpose. The worker notes that an employer is required to take a worker as it finds them, and says that an exploration of the worker's psychological condition for a period prior to the claim is not relevant, and lacks the requisite forensic purpose.
4. Secondly, the worker says the summons is too wide, because it does not confine the materials sought to those in a particular time period.
5. Thirdly, the worker says that the summons is unnecessary, on the basis that the employer seeks documents that could otherwise be obtained through discovery, and the summons, on that basis, is an abuse of process.
6. In relation to the request for discovery, the worker says that the earlier claims for compensation have no relevance to the present claim, having been made several years beforehand. Further, as the earlier claims were made against the same employer, any documents relating to those earlier claims, such as medical certificates, medical reports or workers compensation claim forms would already be in the possession of the employer.

1. Section 104 of the TASCAT Act relevantly provides that the Tribunal may, on the application of a party to proceedings, issue a summons requiring a person to produce evidentiary material.
2. A party requesting the issue of a summons must satisfy the Tribunal that there is a legitimate forensic purpose for the summons to issue. To show that there is a 'legitimate forensic purpose' it would generally be sufficient to show that the documents which are sought to be produced have either an apparent relevance to an issue before the Tribunal and/or may bear upon cross-examination of witnesses intended to be called when the proceedings are heard: Secretary of Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [8].
3. The Administrative Appeals Tribunal in Kuchlmayr and Australian Capital Territory (Compensation) [2023] AATA 2305 summarised the threshold of 'apparent relevance' at [36] as involving two considerations:

whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings and may assist in the resolution of the issues in the proceedings; and

whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be 'on the cards' that the documents sought will materially assist the party at whose the request the subpoena has been issued.

1. The cause of the worker's psychological injury, most recently diagnosed as a Major Depressive Disorder, is in issue between the parties. The onus will rest upon the worker to show that her employment was the major or most significant contributing factor to the injury which is the subject of the claim.
2. Whilst the reports of both Drs Evenhuis and Lake support the worker's case in this regard, their opinions each rest upon the history given to them by the worker, and upon the documents provided for the purposes of the respective assessments (including reports from other medical practitioners) that all post-date the claim being made.
3. Both Dr Evenhuis and Dr Lake took a history from the worker that included her past psychiatric history. I infer, therefore, that past psychiatric history is a matter that is likely to have some relevance to the matters to be considered in formulating expert psychiatric opinions.
4. On that basis, I conclude that the history of any psychological conditions for which she has been treated by her general practitioners have potential relevance to the issue of the cause of the worker's claimed injury, and the employer has therefore demonstrated that there is a legitimate forensic purpose for the summons to issue seeking 'clinical notes, records or reports concerning any psychological conditions that the worker has been treated for at the general practice'.
5. The terms of the summons are not, in my view, too broad. Neither Dr Evenhuis nor Dr Lake appear to have confined the history taken from the worker to any particular period of time.
6. Finally, in relation to the third ground of objection put forward by the worker, there is nothing before me to suggest that the documents sought could be obtained through the discovery process - as I have set out immediately below, it appears that the worker has not obtained from her general practice any records that predate January 2020, and would therefore not be in a position to discovery them to the employer.
7. The other documents that are sought as part of the summons - notes, records and reports from the general practitioner in relation to the claim made in November 2020 - are also relevant, but they have already been released to the employer by way of the worker's discovery. Correspondence from the worker's general practitioner to the worker's solicitor dated 15 May 2023 attaches all medical records for the worker from January 2020, "as requested... not just those relating to her workers compensation claim". The worker's solicitor has advised the Tribunal that those records formed part of the worker's discovered documents in May 2023, without redaction. The employer does not suggest to the contrary.
8. On that basis, I do not consider the employer has demonstrated that there is a legitimate forensic purpose for the summons to issue in respect of the worker's medical records in relation to the claim for compensation made in November 2020. The records have already been made available to the employer through the discovery process.

Consideration: the request for further discovery

1. Regulation 6 of the Workers Rehabilitation and Compensation Regulations 2021 (the WRC Regulations) permit a party to request discovery of documents from another party to proceedings.
2. Chief Commissioner Webster (as he then was) in Glenorchy District Football Club v C [2019] TASWRCT 29, at [25] noted:

Regulation 6(1)(a) permits a party to request discovery of documents relevant to the issues in dispute in any application or referral. To be relevant the document must relate in some way to the matter in dispute and it has been held in Donaldson v Harris (1973) 4 SASR 299 at 304 that relevance will be established if the document sheds any light on the case or if it would lead to a train of enquiry which would either advance a party's own case or damage that of his adversary: Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345.

3. The worker's claims for compensation in 2014 and 2015 are potentially relevant to questions that the Tribunal will be asked to determine where the employer relies upon s 37 and 38 of the WRC Act in resistance of the most recent claim for compensation. In particular, the worker's involvement in the claims process, and understanding of the requirements of the WRC Act may be relevant to questions about whether the worker's alleged failure to give notice of injury as soon as practicable, or any alleged failure to make the claim within 6 months of the injury was 'occasioned by mistake... or other reasonable cause', as contemplated by s 37(1)(a) and/or s 38(1) of the WRC Act.

(a) Pursuant to Regulation 6 of the WRC Regulations, I order that within fourteen days the worker is to make discovery of all documents in her possession, custody and power relating to workers compensation claims she made in about 2014 and 2015 respectively.

(b) Pursuant to s 104 of the TASCAT Act, I authorise the issue of a summons to the Practice Manager of [the worker's general practice] to produce clinical notes, records and reports which concern any psychological conditions that the worker has been treated for at [the worker's general practice].

1. The employer sought an order for costs in its application for discovery. The question of costs was raised generally when these applications were heard. I will hear the parties about the issue of costs if it becomes necessary.