Workers compensation - Claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer.

Workers Rehabilitation and Compensation Act 1988; ss 80A, 81A;

State of Tasmania (Department of Health) v O [2024] TASCAT 80;

Hindle v Elliot [2024] TASCAT 45;

Neil v Legal Profession Complaints Committee [2011] WASCA 48;

Swan v Miller [2001] TASSC 15;

Masonic Care Tasmania Inc v F [2023] TASCAT 9;

Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134;

State of Tasmania v Cane [2024] TASSC 56.

The decision has been anonymised for the purpose of publication.

1. On 30 June 2025 the employer lodged a referral under s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act) disputing the employer's liability to pay compensation to the worker in relation to an injury the worker claimed to have occurred at work on 30 May 2025. Subsequently, the employer's solicitors applied to the Tribunal to make a determination regarding the Tribunal's jurisdiction to hear and determine the s 81A referral.
2. The basis of the employer's application was that on the evidence, s 80A of the WRC Act applied such that the worker's claim for compensation for her injury of 30 May 2025 was a claim for compensation in respect of an injury previously made against the employer.
3. For the reasons which follow, I have determined that I have no jurisdiction to hear this referral and it will be dismissed.

1. The worker made a claim for compensation on 28 April 2025 for a psychological injury said to have occurred on 10 April 2025 (the "first claim").
2. In her claim form for this injury, the worker stated:

I sustained a mental health injury due to ongoing exposure to excessive workload, lack of appropriate support, low role clarity, unreasonable workplace behaviours, and exclusion from critical decision making processes at Meander Valley Council. Despite raising concerns over a prolonged period, no effective actions were taken resulting in cumulative psychological harm. > > ... > > My GP has indicated my current diagnosis due to my workplace injury as major depressive disorder, anxiety disorder =? adjustment disorder. > > ... > > This injury is a result of ongoing exposure to unmanaged psychological hazards since earlier 2024. The hazards were present from early on, but they intensified over time without intervention, leading to gradual deterioration of my mental health.

3. A referral pursuant to s 81A of the WRC Act was filed with the Tribunal, disputing the worker's first claim for compensation.
4. After a hearing on 23 June 2025 the Tribunal found a reasonably arguable case to dispute the employer's liability to pay compensation to the worker in relation to the first claim existed, and made orders ceasing the payment of compensation to the worker pursuant to s 81A(3)(c) and (d) of the WRC Act.
5. On 16 June 2025, the worker made another claim for compensation (the second claim) for a psychological injury said to have occurred on 30 May. The nature of that claim as set out in the workers compensation claim form dated 16 June 2025 was:

While I was on medically certified leave for a psychological injury and unfit for all work, I became aware during a scheduled medical appointment that my employer intended to raise a formal complaint against me with an expectation I must respond while fully incapacitated. This occurred despite medical advice that no direct work related contact be made with me. Following this, I received multiple direct and unsolicited communications despite having nominated a representative from my employer, the insurer, and the rehabilitation provider. This management aggravated my condition and caused a further significant exacerbation of my injury.

6. Further, in her claim form she stated in response to the question "What are your injuries?":

Exacerbation of pre-existing medically diagnosed injury by my employer.

7. In an initial prescribed workers compensation medical certificate for the second claim, authored by Dr Carlin White on 16 June 2025, Dr White stated that the worker was meant to take part in return to work planning for the first claim injury, (the first claim), but she then found out via a third party about a formal complaint against her which resulted in new psychological symptoms. The third party referred to was Dr Tip, the worker's GP who was managing her first workers compensation claim.

1. The issue before the Tribunal is whether it has jurisdiction to determine the employer's referral made pursuant to s 81A of the WRC Act in relation to the second claim. If the Tribunal determines that it does not have jurisdiction, then the referral must be dismissed. If the Tribunal determines that it does have jurisdiction, it must proceed to determine the employer's s 81A referral.
2. Section 80A of the WRC Act provides:

For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer.

3. As was indicated by Deputy President Clues (as she then was) in State of Tasmania (Department of Health) v O [2024] TASCAT 80 at [12], once the issue of jurisdiction is raised, the Tribunal is required to determine its jurisdiction; see Hindle v Elliot [2024] TASCAT 45 at [21]. The parties are unable by agreement to vest in the Tribunal a jurisdiction that the Tribunal does not have; see Neil v Legal Profession Complaints Committee [2011] WASCA 48 at [7]. If the Tribunal purports to exercise a statutory power it does not have, its jurisdiction will be ultra vires and invalid; see Swan v Miller [2001] TASSC 15 at [13].
4. Accordingly, the jurisdictional issue arising under s 80A must be determined before any valid orders can be made pursuant to s 81A. It was therefore appropriate for the employer's solicitors to raise this issue with the Tribunal.

1. The employer submits that the Tribunal does not have jurisdiction to hear this s 81A referral for the second claim on the basis that the injury referred to in the second claim was "based for its foundation" on the events and the injury referred to in the first claim.
2. In support of its submissions, the employer has referred me to the decisions of Deputy President Clues (as she then was) in Masonic Care Tasmania Inc v F [2023] TASCAT 9 and State of Tasmania (Department of Health) v O (supra).
3. The matters asserted by the employer in support of this submission were:

(i) The worker's assertions that once having disputed her first claim, her employers deliberately retaliated against her in a way which caused further harm;

(ii) The worker's assertions that the actions taken by the employer, insurer, and rehabilitation provider, were the cause of an aggravation of the injury basing her first claim, a condition which had not resolved;

(iii) The worker's assertions in her submissions of 15 July 2025 that:

And let's be clear, your jurisdictional argument objection is a red herring. The evidence is my second claim clearly points to conduct that is not only unreasonable but arguable unlawful. Rather than engage with that evidence, the employer has opted to raise a procedural argument to avoid scrutiny of its obvious and wilful misconduct, malfeasance, and maladministration. This tactic might delay accountability, but it cannot erase the record now before the Tribunal.

If the employer did not want its actions scrutinised it should simply not have taken them. But more than that it should not have disputed my original injury nor retaliated in ways that caused a further aggravation. Over and over, for months, this employer has retaliated against me, first for sustaining a psychological injury, and again through the aggravation it caused by its continued misconduct. Surely it is understood that this path carried a risk; the risk is that conduct might eventually be brought to light. That is not a surprise it's a consequence. (emphasis added)

(iv) The date of the worker's injury in the second claim (30 May 2025) was the date on which the worker was served with the disputation notice required by s 81A(1)(a) and (b) of the WRC Act for her first claim. The day before her General Practitioner had advised her in a meeting regarding the injury basing the first claim, about the employer's intention to raise a formal complaint with her. The letter regarding this formal complaint was not received by the worker until 2 June 2025, being after the date of her reported injury basing the second claim.

1. The employer's submission is that as this is a case where the worker has suffered additional stress relating to the workplace interactions around her, and the workers compensation process in relation to the first claim, this is not a separate injury to that basing the first claim.

1. In essence, the worker's extensive submissions assert her claim aligns with the analogous situation occurring in the State of Tasmania (Department of Health) v O more closely than the circumstances arising from the Masonic Care Tasmania Inc v F.
2. The worker asserts in the State of Tasmania (Department of Health) v O that the Tribunal considered whether a second workers compensation claim for a psychological injury was a new and distinct injury or merely a continuation of the original one. The case, it is asserted, is directly applicable to the worker's circumstances in several key ways, particularly in a distinction between the original psychological injury and a second aggravation caused by employer conduct during the return to work or claims process.
3. It is the worker's submission that there is a new injury supported by two separate medical certificates from different medical practitioners. One from Dr Tip dated 23 April 2025 relating to the first claim, and the other from Occupational Physician, Dr White, dated 16 June 2025 relating to the second claim.
4. The worker's assertion is that this is clear evidence that her second injury was caused by unsafe conduct "during the claim process". She asserts there is a new causally distinct psychological injury.
5. In her submissions the worker has stated (at p 6):

Thus, the employer's jurisdictional approach is plainly consistent with Deputy President Clues' binding guidance in the State of Tasmania v O case (supra). There, the Deputy President confirmed that if the worker's claim contains any suggestion or element of a new injury under s 80A(2) the Tribunal is required to assume jurisdiction. To require a conclusive finding at the s 81A stage would be to pre-empt the proper adjudication of evidence and amount to an error of law. The Tribunal must not conflate preliminary referral with final determination. > > ... > > In my case, the referral includes a new medical certificate from a different practitioner, a new diagnosis and a new causative chain involving employer conduct during the return to work process. That is more than sufficient to satisfy the low threshold for jurisdiction as established in State of Tasmania v O (supra).

6. The worker's submissions then focus significantly on the actions of the employer in its disputation of the first claim, especially on the basis of its allegation that the injury basing the first claim either did not occur or if it did, it was caused by reasonable administrative action taken in a reasonable manner.
7. With regard to this submission, the worker has regularly asserted that the two positions cannot both be true. In her view, if the employer genuinely believes the first injury did not occur, or that it was not compensable, then it cannot logically assert that the injury basing the second claim arose as an aggravation of that same first injury.

1. The law with regard to the application of s 80A of the WRC Act has been discussed most recently in the authoritative and binding decision of Brett J in State of Tasmania v Cane [2024] TASSC 56.
2. In that decision at [27] referencing the decision of Crawford J in Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134, Brett J stated:

As his Honour notes, the critical question under s 80A will depend on the nature of the claim communicated to the employer. As was explained in State of Tasmania v Parsons [2002] TASSC 59, this will depend on information concerning "the particular injury upon which the claim is based" derived from the claim form, the accompanying certificate, the circumstances in which that information is communicated to the respondent and any other contemporaneous communication to the employer as to the nature of the claim. The injury to which the claim relates, and hence the application of s 80A will depend on the evidence concerning this question, not on whether the evidence establishes, as a matter of objective reality, a causal link between an earlier injury and the injury which is the subject of the claim. (emphasis added)

The critical question was the nature of the respondent's [worker's] claim, as communicated to the appellant [employer], not its validity.

Of course, the claimed link between the original injury and the development of a psychological condition was not in issue in Thornton, as it is in this case. The actual text of the provision defines the requisite link as a claim "in respect of an injury for which the worker" has not previously made a claim. Because this question was not in issue in Thornton, care must be exercised in defining "in respect of" by use of the term "based for its foundation". In Thornton, the psychological injury was clearly and without challenge based for its foundation on the original injury. However, it cannot therefore be concluded that the causal link must always meet that description in order to establish the injury which is the subject of the claim for the purposes of s 80A. Ultimately, the question is to identify the injury in respect of which the claim for compensation is made, and s 80A will only apply if that injury is not one which has been previously made by the worker. (emphasis added)

The worker's further submissions of 30 July 2025

1. On 30 July 2025, the worker emailed the Tribunal asking for excerpts and observations from her employer's response to her General Protections application in the Fair Work Commission to be considered as being directly relevant to the employer's second s 81A referral (being this matter), and also the material to the determination of the first s 81A referral (being the first claim).
2. Attached to that email was a significant document relating to the Fair Work proceedings.
3. So as to comply with the Tribunal's procedural fairness obligations, a copy of the worker's email and its attachment was forwarded to the employer's solicitors seeking their submissions, if any, as to its contents.
4. Later on 30 July 2025 the employer's solicitors responded asserting:

I just had a review of the material and for the most part, if it is relevant, I consider it relevant to the claim currently in dispute. This in my submission further supports the argument that no new claim pursuant to s 80A has been made, and there is no jurisdiction to hear the (current) s 81A referral.

1. Applying the principles enunciated by Brett J in State of Tasmania v Cane (supra), an examination of the worker's claim for her injury of 30 May 2025, as communicated to the employer, in my view provides support for the employer's argument that the injury identified in the second claim was a psychological condition which had arisen from the actions taken by the employer in respect of the first psychological injury arising out of the first claim, and in particular the workers compensation claim relating to it.
2. Although the workers compensation medical certificate from Dr White of 16 June 2025 makes mention of new psychological symptoms arising from miscommunication and mismanagement of dispute resolution on 30 May 2025, in answer to the question "The injury or disease is", Dr White has stated "aggravation of pre-existing condition".
3. Similarly, in both her claim form, and regularly in her extensive written submissions, the worker has referenced the injury basing her second claim to be an "aggravation of my condition", with it causing "a significant exacerbation of my injury".
4. The evidence confirms that the date of causation for the worker's injury basing the second claim was 30 May 2025, being the date upon which she was served with the s 81A disputation notice in relation to the first claim. Although the worker received verbal advice of a separate formal complaint from her GP, Dr Tip, on 29 May 2025, she did not receive formal written advice about this matter until 2 June 2025.
5. I have considered, but do not accept, the worker's submissions that the disputation of her first claim on the basis that her injury did not occur or that if it did the injury arose as a consequence of reasonable administrative action taken in a reasonable manner, is not a logical assertion to base the employer's solicitor's claim that the basis of the second claim is an aggravation of that initial injury.
6. I accept the employer's submission that it is permissible for an employer to assert this within the context of a s 81A dispute as the first claim disputation was a factual dispute, and the defence of reasonable administrative action was available to be raised. On this latter basis of dispute, there is no denial of a psychological injury, simply that there is a defence to the first claim on that basis.
7. Having considered the material provided by the worker on 30 July 2025, and also the employer's response thereto, also received on 30 July 2025, I agree with the employer's solicitors that the material provided by the worker, if it is relevant, is relevant to the first claim which is currently in dispute.
8. There appears some merit in the employer's submission that this material further supports the argument that no claim for a new injury, pursuant to s 80A has been made by the worker.
9. For all of these reasons, I determine that the nature of the second claim for compensation for a psychological injury allegedly occurring on 20 May 2025 was that it was a claim for compensation by the worker against the employer in respect of an injury for which the worker has previously made a claim for compensation.
10. As I have made this finding, the Tribunal has no jurisdiction to deal with the s 81A referral in relation to the second claim and it is dismissed.
11. Although currently in dispute, the worker is not significantly prejudiced by this decision as she is able to bring the first claim back for determination by the Tribunal through the contested hearing process available to her pursuant to s 42 of the WRC Act which I note she has already done.

1. The s 81A referral in relation to the worker's second claim for compensation dated 16 June 2025 is dismissed.