Workers compensation - Entitlement to payments - Claim for psychological injury - Previous claim for physical injury - Whether the subsequent claim in respect of an injury for which the worker had not previously made a claim - Jurisdiction of Tribunal

Workers Rehabilitation and Compensation Act 1988; s 81A, 80A.

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

State of Tasmania v Cane [2024] TASSC 56;

The Trustee for the Byard Family Trust No.2 t/a Tasmania Sustainable Farming v NBN [2025] TASCAT 119

Employer: M Valentine - Wallace, Wilkinson and Webster

The decision has been anonymised for the purpose of publication.

1. On 20 May 2025, the worker lodged a claim for compensation in respect to a psychological injury. In his claim form, when directed to 'describe what happened and how the injury occurred', the worker stated:

On or around 19 February 2025, while I was medically certified as fully unfit for work due to an existing psychological injury (claim submitted 17 February 2025), my employer directed me to respond to allegations of misconduct. Despite clear medical certification indicating total incapacity, I was told that I was still expected to meet the employer's response deadline. The employer refused to extend the deadline on the basis of my medical incapacity. Under duress, and contrary to medical advice, I submitted a written response. This process significantly contributed to a deterioration in my psychological condition.

1. The claim for compensation was supported by a worker's compensation medical certificate dated 20 May 2025 which describes the presenting symptoms as stress, anxiety, poor sleep and reduced appetite. It noted the worker stated the condition to be caused by an incident which occurred on 20 February 2025. I will refer to the claim made by the worker on 20 May 2025, as 'the current claim'.
2. At the hearing for the employer's s 81A referral, the employer raised a jurisdictional issue with respect to s 80A of the Act.

1. The employer's position is that the Tribunal does not have jurisdiction to hear the referral because the claim is not a claim for compensation in respect of any injury for which the worker has not previously made a claim for compensation. The employer contends that the current claim is a claim for compensation in respect of an injury, for which the worker previously made a claim on 17 February 2025.
2. Section 80A of the Workers Rehabilitation and Compensation Act 1988 (the Act) provides as follows:

80A. Claim for compensation > > 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. I adopt the discussion by Senior Member Jack in The Trustee for the Byard Family Trust No.2 t/a Tasmania Sustainable Farming v NBN [2025] TASCAT 119 regarding the effect of s 80A at [5]-[7]:

The 'Division' referred to in s 80A is Division 1 of Part VII of the Act. That division of the Act includes s 81A. Section 81A of the Act is the section which permits an employer who has received a claim for compensation to dispute liability to pay compensation to the worker in respect of the claim. Where an employer raises the question of the Tribunal's jurisdiction in the context of s 80A, the Tribunal needs to determine whether the worker's claim for compensation that is the subject of the referral is a claim in respect of an injury for which the worker has not previously made a claim for compensation.

If a worker's claim is not a 'claim for compensation' under s 80A, the Tribunal does not have jurisdiction to hear the employer's s 81A referral and the referral must be dismissed.

That is the preliminary question that I need to resolve. If I determine that the worker's claim for compensation is a claim for compensation within the meaning of s 80A, I have jurisdiction to hear the s 81A referral and I must then proceed to determine whether the employer has established the existence of a reasonably arguable case to dispute liability in relation to the claim.

1. In this matter, the worker has conceded that a reasonably arguable case exists in relation to the dispute, if the Tribunal has jurisdiction to hear the s 81A referral.

1. Before the current claim, the worker submitted two prior claims for compensation both related to psychological injury. The first claim was submitted on 10 May 2024 'the first claim' and the second on 17 February 2025 'the second claim'.
2. The employer disputed liability for the first and second claims and referred each to the Tribunal under s 81A of the Act. Both referrals were resolved by way of consent orders.

1. The first claim form was dated 10 May 2024. In the section asking the worker to 'describe what happened and how the injury occurred', the worker stated:

I have been coerced into agreeing to undergo a Performance Improvement Plan that includes expectations I cannot meet due to my disability. I became unwell due to stress and sought treatment from my GP, who referred me to a clinical psychologist. My clinical psychologist diagnosed me with anxiety, which is attributable to my workplace issues. I have no history of anxiety. My clinical psychologist was also able to revalidate a diagnosis I received for Autism when I was a child. I have provided to my employer a letter from my clinical psychologist who has disclosed my disability (Autism) and has suggested a number of workplace accommodations to help support me in my role. My employer has not taken any measures to implement any accommodations, but has instead provided a letter outlining why they consider many of these accommodations to be unreasonable and putting the onus on me to propose alternative solutions. My employer insists on proceeding with the Performance Improvement Plan without taking into consideration the impact my disability has on meeting those expectations. I have been informed that if I do not follow through with the Performance Improvement Plan, or fail to meet the expectations set out in the Performance Improvement Plan, they will consider disciplinary measures up to and including termination.

1. In the second claim form, dated 17 February 2025, the worker sets out:

Since returning to work full-time in August 2024, I initially improved but experienced a significant relapse, leading to a new medical diagnosis of workplace-induced anxiety and work-related stress in 2025. This diagnosis has been attributed to my employer's failure to fulfill their commitments. Specifically:

1. The employer failed to provide the written acknowledgment of feelings or hold the agreed verbal meeting, despite these being legally binding obligations following conciliation with Equal Opportunity Tasmania.
2. The employer failed to implement the reasonable accommodations they committed to in writing on 3 May 2024.

Despite multiple opportunities to address these failures, the employer took no action. As a result, my condition progressively worsened, requiring me to resume medical treatment on 21 October 2024. However, due to the employer's continued failure to implement accommodations and uphold legally binding commitments, my symptoms further deteriorated, ultimately resulting in a new medical diagnosis of workplace-induced anxiety and work-related stress in 2025.

1. The second claim for compensation was supported by a worker's compensation medical certificate dated 17 February 2025 which made a provisional diagnosis of anxiety and work stress and certified the worker to be incapacitated for any work from 17 February 2025 to 5 March 2025.

1. The employer contends that the condition outlined in the second claim is 'one and the same' as the condition outlined in the current application. The employer submits that having regard to the claim form and the medical certificate dated 20 May 2025, that the condition first identified on 20 February 2025 is near identical to the condition outlined in the second claim for compensation.
2. Regarding the second claim, the employer submits that for the purposes of the Act, the date of the injury is the date of certification which was 17 February 2025. This is on the basis that an injury being a disease is not suffered until there is certified incapacity in accordance with s 3(5) of the Act. The employer further argues that the current claim is just three days 'shy' of the events the worker contends created a new injury. The employer maintains that the injury on 20 February 2025 is not a discrete injury occurring at a different time or under different circumstances to the injury on 17 February 2025.
3. The worker disagrees with the employer's assertion that the injury occurred three days after the previous claim was submitted. The worker submits that the date of injury with respect to the second claim was October 2024.

1. The key question for the Tribunal is whether the worker's claim for a psychological injury is a claim in respect of an injury for which the worker has previously made a claim.
2. In Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134 (Thornton) Crawford J held at [39]:

A question of fact therefore required determination by the Tribunal. It concerned the nature of the claim that had been made by the appellant against the respondent and in respect of which the respondent had purported to dispute liability and to refer to the Tribunal under s 80A(1), but not the validity of his claim. Further, the question concerned his claim as communicated to the respondent, upon receipt of which the respondent purported to raise the dispute under s81A(1). In State of Tasmania v Parsons (supra) at pars 69 - 73, I discussed in a different context why it may be important to determine precisely what is being claimed by the worker.

1. The decision in Thornton, and s 80A generally, was discussed by Brett J in State of Tasmania v Cane [2024] TASSC 56. His Honour held at [32]-[33]:

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.

The term "in respect of" appears regularly in statutory provisions. It is used to define the required relationship between two subjects. The many judicial observations about its meaning seem to be adequately summed up in the following comments by Deane, Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 at 653-654:

"Undoubtedly the words 'in respect of' have a wide meaning, although it is going somewhat too far to say, as did Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly, that 'they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer'. The phrase gathers meaning from the context in which it appears, and it is that context which will determine the matters to which it extends."

1. While the nature of the injury may be similar, based on the details provided in the claim, I am not convinced that the current claim constitutes the same injury as the one described in the second claim. This is because the injury in the current claim arises from a different set of circumstances than those outlined in the second claim. I do not consider the time elapsed between the injuries to be a relevant factor in this case, as the wording of the claims suggests they arise from distinct "relevant events."
2. I find that there is insufficient connection to establish that the current claim is "in respect of" the psychological injury for which the second claim was made.
3. The worker's claim for compensation is therefore a claim in respect of an injury for which the worker has not previously made a claim, and the Tribunal has jurisdiction to hear the employer's s 81A referral.

1. The worker has conceded the existence of a reasonably arguable case to dispute liability for his claim, if the Tribunal does have jurisdiction. In light of the concession made by the worker, I determine that a reasonably arguable case exists concerning the liability of the employer to pay compensation to the worker in respect of the claim dated 20 May 2025.
2. I order, pursuant to s 81A(3)(c) and (d) of the Act that weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI of the Act are not to be paid from the date of this determination.