Workers Compensation - Proceedings to obtain compensation - Preliminary requirements - Making of claim - Requirement to make claim within six months - Whether reasonable cause for not making claim within time - Whether employer has met onus - Employer's making of payments somewhat ambiguous - Employer's communication with worker unclear - Reasonably arguable case found.

Workers Rehabilitation and Compensation Act 1988, ss 32, 37, 38, 81A, 81AA.

Christiansen v J. W. Simpson & Co Pty Ltd [1971] SASR 412;

Johnson v Metro Tasmania Pty Ltd (2003) 11 Tas R 319; [2003] TASSC 38;

Legione v Hately [1983] HCA 11; (1983) 152 CLR 406;

Pearson v Tasmania [2024] TASSC 41;

St Helens Oysters Pty Ltd v Coatsworth (2007) 17 Tas R 43; [2007] TASSC 90;

Tasmania v Pilling (2020) 32 Tas R 92; [2020] TASSC 13.

The decision has been anonymised for the purpose of publication.

Amended pursuant to Section 119 of the Tasmanian Civil and Administrative Tribunal Act 2020

1. The worker is a process operator at Nyrstar Hobart Pty Ltd (Nyrstar). He injured his left and right shoulders and made a claim for compensation in respect of each under the Workers Rehabilitation and Compensation Act 1988 (the Act). Nyrstar disputes the claims under s 81A on the basis that each claim was not made within six months of the injury occurring as required by s 32(1)(b), and such failure is not excused by s 38.

1. Section 32 relevantly provides:

32. Notice of injury and claim for compensation > > (1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless - > > (a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and > > (b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death. > > ...

2. Section 38 provides an exception to s 32(1). It states:

38. Effect of failure to make claim > > (1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause. > > (2) Without limiting the generality of the expression reasonable cause in subsection (1), that expression includes - > > (a) the making of a payment to a worker that he believes to be a payment of compensation under this Act; and > > (aa) a failure by the worker's employer to comply with section 33A in relation to the injury to which the worker's claim for compensation relates; and > > (b) any representation that is made to a worker that he believes is made by or on behalf of his employer to the effect that compensation under this Act will or will not be payable. > > (3) Any dispute relating to the failure of the worker to make a claim for compensation within the period prescribed by section 32(1)(b), section 32(2) or section 32(2A) may be referred by either party to the dispute to the Tribunal for determination.

1. The nature and circumstances of the injuries are not in dispute. Nor is it disputed that the worker failed to make either claim within six months. The sole issue is whether it is reasonably arguable that s 38 is not engaged.
2. The worker and two Nyrstar representatives made statements of evidence. Because this is a s 81A referral, I must take the employer's evidence at its highest. There is nothing about the Nyrstar's representatives' evidence set out below that is inherently implausible or contradicted directly by objective evidence. Accordingly, where there is some contradiction or inconsistency between the worker's evidence and the evidence of Nyrstar's representatives, I have preferred the latter.
3. Based on the referral and subsequent statements provided by Nyrstar and the worker, I assume the following facts:
   1. The worker injured his right shoulder on or about 29 August 2024 while at work. He reported his injury to Nyrstar. Nyrstar referred him to a doctor.
   2. The doctor recommended that the worker perform light/restricted duties and completed workers compensation medical certificates. The worker provided these certificates to Nyrstar and was treated by a physiotherapist at Nyrstar's expense. Nyrstar provided the worker with notice of his right to make a claim under the Act.
   3. While performing light/restricted duties, the worker injured his left shoulder on or about 5 October 2024. He reported this injury and saw the same doctor recommended by Nyrstar. The doctor completed ongoing workers compensation medical certificates (but not an in initial certificate) which were also provided to Nyrstar. Nyrstar again provided the worker with notice of his right to make a claim under the Act.
   4. The worker worked reduced hours because of the injuries.
   5. In respect of the injuries, Nyrstar:
      1. paid for various treatments;
      2. implemented return-to-work plans; and
      3. paid the worker's wages for the gap between his usual hours and his reduced hours. These were recorded on the worker's payslip as "Workers Compensation-Paid" because that is how Nyrstar's payroll system functioned.
   6. Nyrstar's 'rehabilitation and wellness adviser' told the worker that the claims were being dealt with "in-house" and reiterated in several conversations with the worker that he had not made a claim for workers compensation.
   7. In communicating with Nyrstar's representatives, the worker referred to "my worker's compensation". Similarly, Nyrstar's 'workers compensation claims manager' emailed the worker to organise independent medical reviews regarding surgery in respect of the worker's injuries.
   8. At the worker's request, Nyrstar provided him with a workers compensation claim form in late January 2025. The worker requested assistance from Nyrstar in completing the form.
   9. The worker did not provide Nyrstar with completed claim forms until June 2025. Accordingly, the worker's claims were made some 8 and 9 months after he sustained his respective injuries.

1. Nyrstar says that it did not compensate the worker under the Act. Instead, it was "simply being a supportive employer". It says that it "has not made any representation to [the worker] that payment of compensation under the Act will or will not be payable" and that the worker was aware of that. It submits that s 38 is not engaged.
2. The worker says that his failure to make a claim was the result of a reasonable mistake: that he thought that Nyrstar was dealing with his injuries under the Act. He submits that Nyrstar should be estopped from relying on s 32(1)(b) on the basis that it represented to the worker that a claim had been made or something to that effect. (The worker's submissions as to the nature and circumstances of the estoppel, particularly the details of the asserted representation, were somewhat unclear.) In the alternative, the worker submits that Nyrstar has not established a reasonably arguable case in respect of s 38.

1. It is not disputed that neither claim was made within six months of the injury occurring as required by s 32(1)(b). I need to determine whether it is reasonably arguable that the worker's failure to do that is not excused by s 38. To avoid double negatives, I will express this as whether s 38 arises or applies.

Section 37 does not arise

1. Section 37, titled 'Effect of failure to give notice of injury', does not arise; cf Tasmania v Pilling (2020) 32 Tas R 92; [2020] TASSC 13 at [41]. It is not disputed that the worker gave notice of each injury as soon as reasonably practicable. The issue relates to the effect of his failure to give notice of each claim.

1. The parties referred me to Pearson v Tasmania [2024] TASSC 41, in which Blow CJ referred to the Full Court of the South Australian Supreme Court's consideration of promissory estoppel in a workers compensation case in Christiansen v J. W. Simpson & Co Pty Ltd [1971] SASR 412. It is unnecessary for me to consider whether an estoppel may arise in a s 81A referral (in respect of which there is case law) or the other cases referred to by the parties. Estoppel in pais requires a 'clear' and 'unambiguous' representation: Legione v Hately [1983] HCA 11; (1983) 152 CLR 406 at 435-436.
2. Taking Nyrstar's evidence at its highest, I am not satisfied that it clearly and unambiguously represented that s 32(1)(b) would not be relied upon or that the injuries were being or would be treated as if they were the subject of claims under the Act. Nor am I satisfied that there was any clear and unambiguous representation that payments were being made under the Act. While there were some representations, they were not clear and unambiguous when assessed against Nyrstar's other representations. So much is apparent from the assumed facts set out above at paragraph (6)(f). Accordingly, an estoppel cannot arise.

Application of s 38

The test under s 38

1. Because this is a s 81A referral, Nyrstar bears the onus of establishing that it is reasonably arguable that s 38 does not arise. There is no suggestion that the worker was absent from Tasmania. Accordingly, there are two possible avenues in s 38 of which the worker may avail himself. The first is that his failure to make each claim was occasioned by "mistake". The mistake must be genuine, but it need not be reasonable. The second is that the failure was occasioned by "other reasonable cause". Subsection (2) provides a non-exhaustive list of examples. Here, Nyrstar's making of payments and representations are relevant: s 38(2)(a) and (b).

1. The parties made submissions on s 81AA. Where an employer has received a claim for compensation, the making of weekly payments is not an admission of liability in any subsequent proceedings under the Act: s 81AA(1)(a). It is not disputed that Nyrstar paid the worker the equivalent of weekly payments. But the characterisation of the payments is disputed.
2. The worker correctly points out that s 81AA does not apply because Nyrstar had not received a claim for compensation. In addition, the provision applies to subsequent proceedings. However, it does not follow that the fact that payments were made outside the application of s 81AA is an admission of liability. Whether Nyrstar's payments are an admission of liability under the Act is a question of fact. So much is consistent with the approach taken by Cox CJ in Johnson v Metro Tasmania Pty Ltd (2003) 11 Tas R 319; [2003] TASSC 18, albeit in different context. Here, Nyrstar has explained why payments were made. The explanation may not be particularly persuasive, but it is plausible, and I must take Nyrstar's evidence at its highest. It follows that I do not accept that the payments are an admission of liability.
3. That is not the end of the matter. The payments may nonetheless contribute to any "mistake" or "reasonable cause" within s 38(1) but must be assessed against the other evidence.

1. Nyrstar's evidence, which I must take at its highest, is that it repeatedly told the worker that he had not made a claim under the Act: paragraph 6(f). It follows that it is reasonably arguable that s 38 will not apply; specifically, that the worker's failure to make each claim was not the result of a genuine mistake. Another plausible explanation is that the worker decided not to make a claim given the actions already being performed by Nyrstar. Nyrstar points to evidence that the worker asked for a copy of a claim form and for assistance filling it out, but then decided not to lodge it. It also points to its several reminders to the worker that he had not made a claim for compensation. Nyrstar's evidence on this point is relatively non-specific and perhaps not strong, but it need not be on a s 81A referral.

1. Nyrstar's case may not be particularly strong; there is evidence that Nyrstar may have led the worker to believe that his injuries were being treated under the Act. However, the threshold on a s 81A referral is low. Nyrstar need only show that "there is a reasonable prospect of the claim being rejected following a final hearing": St Helens Oysters Pty Ltd v Coatsworth (2007) 17 Tas R 43; [2007] TASSC 90 at [10]. Accordingly, Nyrstar need only establish a reasonable prospect of the worker being unable to avail himself of s 38. I am satisfied that Nyrstar has met that low threshold.

1. It is reasonably arguable that the worker cannot avail himself of s 38 in either referral. Section 81A(3)(c) and (d) requires me to order that compensation and the costs of benefits are not to be paid by Nyrstar in respect of each referral. I make that order from today.