v L (Ref No 868/2015) [2015] TASWRCT 34

Workers' Compensation - Proceedings to obtain compensation - Preliminary requirements - Interim payments - Whether reasonably arguable case for employer exists - Sufficiency of evidence.

Workers Rehabilitation and Compensation Act 1988 (Tas), s 81A.

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43, referred to.

Judgment Number: [2016] TASSC 16

1. This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal, constituted by Commissioner Chandler: MRD Supermarkets Pty Ltd t/as Triabunna IGA Everyday v L (Ref No 868/2015) [2015] TASWRCT 34. It concerns a referral pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 ("the Act"). That section concerns interim payments. The learned commissioner decided that the employer had a reasonably arguable case, and made orders excusing the employer from making weekly payments of compensation, and from paying medical expenses and so forth. The worker has appealed, contending that the learned commissioner erred in law in making those orders, and that she should be receiving the payments in question.
2. In July of last year the worker submitted a claim for workers compensation in respect of a psychological condition that was said to have arisen as the result of an incident on 21 July at about 1.30pm at her workplace, which was a supermarket operated by the respondent at Triabunna. The claim form required her to give details of what happened. She wrote, "verbally attacked, bullied, threatened indirectly sworn at". In completing the form she said that she had a supervisor named Gemma Lamont, and that that person was a witness to the occurrence. No other witnesses were named. She said that the incident occurred in a storeroom.
3. The claim form was accompanied by a medical certificate in which a general practitioner said that the worker was seen on 23 July and 27 July. The doctor described the worker's presenting symptoms as "tearful, anxious, emotional". The doctor gave this description of the incident:

"Appointed I/C by owner while he was away. Had a problem with a staff member who used abusive language and episode of bullying consistent with the stated cause."

1. When an employer receives a claim for compensation, s 81(1) of the Act requires the employer to commence making weekly payments of compensation to the worker. However, if the employer wishes to dispute liability to pay compensation, the worker may refer the matter to the Tribunal under s 81A. That is what the employer did in this case. Once that occurs, the Tribunal is required to decide whether "a reasonably arguable case exists" concerning the liability of the employer to pay weekly payments or benefits, such as medical expenses: s 81A(3). If the Tribunal decides that the employer has a reasonably arguable case, then the Tribunal must determine that compensation and benefits are not to be paid: s 81A(3)(c), (d). However a decision made under s 81A is only an interim decision. Either party may refer the matter to the Tribunal under s 42(1) and proceed to a defended hearing.
2. At the hearing before the learned commissioner, the employer relied on only one document as a source of evidence that it had a reasonably arguable case in relation to the worker's claim. That document was a one-page statement by Michael Duke, who apparently controlled the employer company. It read as follows:

"1 I am the owner of MRD Supermarkets Pty Ltd trading as Triabunna IGA Everyday.

1. I am aware that Tara Lamont has made a workers compensation claim for a psychological injury that she attributes to an incident on 21 July 2015.
2. I am aware that in the workers compensation claim form Ms Lamont alleges that she was verbally attacked, bullied, threatened and sworn at.
3. I am also aware that the initial workers compensation medical certificate refers to abusive language and an episode of bullying.
4. I have investigated Ms Lamont's claim, including by interviewing all relevant staff members.
5. Ms Lamont's version of events was contradicted by the version of events given by all other staff members.
6. The employer denies that Ms Lamont was verbally attacked, bullied, threatened or sworn at. The employer also denies that a staff member used abusive language towards Ms Lamont.
7. The initial workers compensation medical certificate includes a comment that Ms Lamont was appointed in charge by the owner. That comment is incorrect. I did not appoint Ms Lamont in charge."
8. The worker contends that this statement contained so little information that, as a matter of law, it was not open to the learned commissioner to be satisfied that the employer had a reasonably arguable case. The employer contends that it did contain sufficient information for such a finding to be open.
9. The Act contains provisions to the following effect:
   • When a party to a proceeding before the Tribunal is aggrieved by a determination of the Tribunal, that party may appeal to this Court, but only in relation to a point of law: s 63(1).
   • The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit: s 49(1)(a). (The Tribunal is therefore entitled to rely upon hearsay evidence in unsworn documents if it thinks fit.)
   • When an employer refers a matter to the Tribunal under s 81A, its referral is required to be accompanied by "all evidentiary material on which the employer intends to rely at the hearing of the matter": s 81A(2)(b).
   • If an employer fails to lodge evidentiary material under s 81A(2)(b), the employer may not rely on that unlodged material unless the Tribunal allows it to: s 81A(2AA).
10. The provisions of s 81A were considered by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43. At [10] his Honour made clear what is involved in the concept of a "reasonably arguable case", saying this:

"The very notion of a 'reasonably arguable case' like the very notion of a 'prima facie case', precludes a final determination of a disputed question of fact ... . On the face of s81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected."

1. Before some amendments in 2004, s 81A had required the Tribunal to make orders excusing an employer from making payments if it was satisfied that there was "a genuine dispute". The amendments in 2004 replaced that test with the one involving a "reasonably arguable case". In St Helens Oysters at [10], Evans J said:

"By substituting a test that involves reasonableness for a test that involved genuineness, the amending legislation removed that subjective element from the test and replaced it with an objective element. Whilst the focus of the objective element is on the arguability of the case, that focus inevitably extends to the case itself. A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing."

1. Because s 81A(2)(b) requires an employer to provide evidentiary material, without which it could not succeed in s 81A proceedings, it must follow that the employer bears an onus of proof in such proceedings: Skilled Group Limited v Anning [2015] TASSC 18. See also GIO Australia Limited v Lovell [2000] TASSC 75 at [13].
2. A number of points can be made about Mr Duke's statement:
   • It contains nothing to suggest that the worker did not suffer from some sort of psychological disorder in July 2015, and nothing to suggest that she was not incapacitated as a result of such a disorder. It relates solely to the questions whether (a) an incident occurred in the course of the worker's employment on 21 July; and (b) that incident contributed to a substantial degree to the worker suffering that condition. By virtue of s 25(1)(b) of the Act, compensation was payable to the employee if, but only if, her employment "contributed to a substantial degree" to the condition that was the subject of her claim.
   • The denials in par 7 do not constitute assertions as to what did or did not occur on 21 July. Paragraph 7 is like a paragraph in a pleading in that respect. The strength of the case of a corporate employer cannot be increased by it denying anything.
   • Paragraphs 1-4 inclusive contain nothing to suggest that the employer has a case.
   • In par 6, Mr Duke says that the worker's "version of events was contradicted by the version of events given by all other staff members". However he does not say to what extent it was contradicted. His use of the word "all" implies that he interviewed at least three other staff members. There were a number of assertions by the worker that could have been contradicted, including (a) verbal attacking, (b) bullying, (c) indirect threatening, (d) swearing, (e) her presence in the storeroom, (d) a conversation at or about 1.30pm.
   • The only assertion by the worker that is specifically contradicted is the assertion that the owner had left her in charge. That assertion appears in the medical certificate, not the claim form, but appears to have been made by the worker.
3. Counsel for the employer submitted that I should interpret par 6 of Mr Duke's statement as meaning that the worker's version of events was totally contradicted by the version or versions of events given by the other staff members. I reject that submission. Contradiction can be total or partial. Different staff members might have contradicted different assertions. Some might have contradicted more assertions than others. At most, it would have been open to the learned commissioner to infer that, in the opinion of Mr Duke, the worker's version of events had been substantially contradicted. But, with all due respect to him, the opinion of Mr Duke would have been of no assistance to the learned commissioner, who was required to make his own assessment of the strength of the employer's case.
4. It was open to the learned commissioner to inform himself as to the existence and strength of the employer's case by reading a summary of hearsay information in a document created by someone who had interviewed witnesses. But the learned commissioner was required to assess the assertions in Mr Duke's statement for the purpose of determining whether the employer had a case in relation to the worker's entitlement to weekly payments and/or the payment of expenses, and, if so, whether there was a reasonable prospect of the worker's claim being rejected at a final hearing. Without knowing what aspects of the worker's version of events were contradicted, by whom, or anything about the circumstances of the contradictors, the learned commissioner was not in a position to understand what the employer's case at a final hearing might be. He was therefore not in a position to evaluate the prospects of the employer's case being successful, or to conclude that there was a reasonable chance of the worker's claim being rejected.
5. The question whether a particular finding is open on the evidence before the Tribunal is a question of law: Nicolia v Commissioner of Railways (1970) 45 ALJR 45; Haines v Leves (1987) 8 NSWLR 442 at 476; Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 139 at 156; Tracey Village Sports and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37; Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100 at [25].
6. In this case when the learned commissioner concluded that the employer had a reasonably arguable case, such a finding was not open to him on the evidence that he received, and he therefore made an error of law.
7. At the hearing, there were two things that the learned commissioner could properly have done. He could have dismissed the employer's reference on the basis that it had not discharged its onus of proof. Alternatively, he could have informed counsel that he did not wish to inform himself by reference to Mr Duke's statement, and that the hearing would be adjourned so that the parties could provide better material. Counsel for the employer made a submission to me to the effect that, if I concluded that the learned commissioner had erred, then I should remit the matter so that the s 81A referral could be re-determined on the basis of additional material.
8. I think that would be inappropriate. It is now over six months since the employer lodged its s 81A referral. It is clear from the Act that s 81A was intended to provide a speedy mechanism for the resolution of disputes as to the making of interim payments. In the circumstances, I think the prolonging of the s 81A proceeding would be undesirable. The employer had an opportunity to submit evidence, bore an onus of proof, submitted inadequate evidence, and should bear the consequences. The final disposition of the worker's claim should not be delayed by re-opening the s 81A proceedings.
9. For these reasons, I have decided to make orders as follows:
   • That the appeal be allowed.
   • That the determination of the Tribunal be set aside.
   • That the respondent make weekly payments to the appellant from the date to which they have been paid.
   • That the respondent pay the cost of benefits payable under Division 2 of Part VI of the Workers Rehabilitation and Compensation Act 1988 in respect of the appellant's injury from 21 July 2015.