Optimum Health Solutions (Tasmania) Pty Ltd v LH [2025] TASCAT 118

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 s 81A, 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.

6. An alternative formulation was set out by Estcourt J in Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2 at [17] as follows:

... what the employer is required to prove is not that there is no liability under s 25 of the Act, but only that there exists, on the evidentiary material the employer relies upon in the s 81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker ... on a final hearing of the workers claim.

1. Where, in the claim form, the worker was asked to describe how her injury occurred she wrote:

I am employed as an Allied Health Assistant to an Occupational Therapist at Optimum Health Solutions. I take notes during Functional Assessments and produce corresponding reports for NDIS clients. Each Functional Assessment is between 2-3 hours long depending on the complexity of the client's case. The assessment is to determine the needs of the client according to their disability and requires us to take an extensive history of the client. Each report is between 5,000 and 10,000 words long depending on nature of the report (functional assessment, supported independent living assessment etc). To reach KPIs, 3-4 reports must be completed and billed each week. I work 4 days a week. I am overwhelmed by the nature of the clients I work with - their stories of violence, incest, rape, struggle, pain and neglect. I work from home via telecommunication link and am isolated with no recourse to debrief or emotional support network to manage the impact of the second-hand trauma on a daily basis. I have received no training for this role or the systems I use nor have I had any performance review which adds to the pressure of the role. While the role was originally designed by OHS to be a remote/work from home role, the nature of the subject matter and the isolation from work colleagues has left me vulnerable and unsafe. On the occasions I do interact with the team (i.e.. Go into the office or attend a team event), no one knows who I am or talks to me. I am unable to attend staff meetings via Zoom as they are scheduled before work hours at 8am when I must drive my child to school. There are no buses available as we live rurally. My doctor first raised the possibility that I may be depressed in August, however, I thought that I was struggling due to workload and that this would be a temporary situation. By September, I was struggling with motivation, experiencing nightmares, and anger outbursts. I had stopped showering and lost weight. I took leave on the 7th of October and, by being away from work. I realised how depressed I had become. Returning to work a week later I struggled to cope and found myself repeatedly triggered by clients' stories and crying during functional assessments. At this point, my partner suggested I see my GP which I did so on the 2nd of December I would have preferred to see my GP at an earlier date, however, she was on holidays and di not return until the 2nd of December.

1. The employer says that on the face of the claim documentation the worker is alleging to have suffered an injury which is a disease within the meaning of s 25(1)(b) of the Act.
2. Firstly, the employer disputes the factual basis of the initial incapacity and injury, and therefore says that the worker has not suffered an injury which is a disease to which her employment contributed to a substantial degree within the meaning of s 3(2A) of the Act.
3. Secondly the employer says that if the worker has suffered from an injury which is an illness of the mind or a disorder of the mind (which is disputed) that injury arises substantially from reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment, pursuant to s 25(1A(c)) of the Act.
4. In support of the dispute the employer relies upon a statement of Mr S Rundle who is the employer's regional manager.
5. In his statement Mr Rundle outlined the following:
   • The worker is employed as a support provider and works in partnership with an occupational therapist (the OT). The OT performs NDIS functional capacity evaluation assessments to identify a client's living and support needs and the worker's role is to attend the assessments and draft the reports.
   • Mr Rundle is the OT's manager and the worker reports to the OT.
   • Approximately two to three times per week the worker was required to attend the functional evaluations performed by the OT. The worker attended remotely while the OT was with the client face to face. The worker was required to take notes and begin to formulate content and the structure of the eventual functional capacity evaluation report.
   • Between themselves the OT and the worker had the discretion to determine when reports needed to be finalised, although it was generally expected that reports would be completed and provided to the client within two weeks of assessment.
   • KPIs are assessed on the basis of reports being completed and billed. The KPI assessments are in regard to the overall output of the worker and the OT's partnership.
   • If a partnership significantly exceeds their KPI there is a threshold above which the partnership is eligible to earn a commission. There is no expectation that a partnership will do so.
   • There are minimum KPIs that staff are expected to meet, and the worker and the OT exceeded those KPIs regularly.
   • The workers' role was originally designed to be either remote or work from home. The worker was advised when she accepted the role that if she wanted to work from a clinic there would be space for her, and there continues to be available office space.
   • The employer has no knowledge of the worker at any time raising that she was struggling with the working from home arrangement.
   • The employer concedes that people with disabilities may experience high levels of trauma compared to other people in the community. The employer concedes that the worker may have heard stories of violence, incest, rape, struggle, pain and neglect, as alleged by the worker. The employer concedes that stories of that nature are an inherent part of working in the disability space.
   • Partnerships have the ability to manage their own caseloads. If a partnership has too much work they have the ability to reduce their caseload or increase it as demand and capacity allows.
   • Debriefing and support is available. In the first instance it is recommended that staff speak with their partner to debrief, and it would be expected that debriefing type conversations would occur between partners regularly given the nature of the work and the circumstances in which clients see them.
   • If a partnership is unable to come to a solution regarding workload or are experiencing stress, then they can come to Mr Rundle to progress the issue.
   • The employer has an EAP[1] provider and staff are regularly reminded that option is available for them to access at any time.
   • Prior to the worker's claim for compensation the employer had not received any reports from the worker that she had suffered trauma or second hand trauma. Upon enquiry from Mr Rundle, the worker's partner OT indicated that the worker had not raised those issues with her.
   • The employer denies that the worker was not provided with training. She was offered and provided with training in the employer's general systems when she commenced which is the same training offered to all staff in their induction. She was provided with specific templates and examples showing how the reports needed to be written and the structure and what content to include. The worker was already a recognised writer, and it was not necessary for the employer to provide training in that area.
   • The worker's work was at a high standard and there were no issues with her performance. There was no need for a performance review as the worker was working to a high standard, and the employer was not aware that the worker had any concerns about a lack of training or her performance.
   • In relation to staff meetings there was no expectation that the worker would attend the meetings. If she had raised that as an issue with the employer they would have been able to reschedule meetings to fit in with the worker so she could attend. Most of the discussion in the meetings was not relevant to the worker's role. All relevant content and minutes are distributed to all staff members following meetings via email.
   • The worker took a period of leave from 7 October 2024 to 11 October 2024, which was prearranged in July 2024.
   • The employer is unaware of any particular events or incidents that may have happened around the identified date of injury, being 7 October 2024. As far as the employer is aware, the worker and the OT had a normal number of assessments in the week prior to 7 October 2024, and again in the week prior to the worker obtaining the initial medical certificate from her general practitioner.
   • In relation to the worker's allegations that she was reduced to crying in functional assessments, the employer says that has never been raised, either by the worker or by the OT. If a staff member was crying in an assessment with a client present Mr Rundle would expect this to be raised with him as it would raise potential concerns about the staff member's welfare.
   • There were changes in staffing in November 2024. An employee on the mainland who engaged in a similar role to the worker's role was made redundant.
   • The worker was good friends with the person who was made redundant. Mr Rundle has been made aware from conversations with the OT that the worker was anxious about whether she would be made redundant.
   • There was no intention to make the worker's role redundant. The worker's performance with the OT was very good from the employer's perspective, and there were no intentions to make any changes to their partnership.
   • The OT was due to go on maternity leave at the end of January 2025. At the time the worker made her claim for compensation the employer was still engaging in discussions about what the workers' role would be, and was in the process of exploring options for the period whilst the OT was on maternity leave. No final decisions had been made. About the time the claim was made the employer was still working with the OT to confirm her parental leave, and once that was confirmed decisions would have been made regarding the worker's role. At no stage was the worker's position 'at risk' in any way, and the worker was aware that steps were being taken to clarify what her role would look like moving forward.
6. In the hearing of the s 81A referral, the employer emphasised that a number of matters the worker had raised as having caused her injury were matters that were in her control, including the partnership discretion to determine their own workload and decide the extent to which they wished to pursue the KPI commission threshold, and the option to work in the employer's office rather than at home (noting that the worker lived within a reasonable commuting distance of the employer's two different offices).
7. The employer also disputes that the worker was not provided with appropriate training and support. In particular, the employer says that there were several levels of support available to the worker.
8. The employer also says that it received no reports of the worker crying in appointments, as she alleges. The employer would have expected to be alerted if that had happened
9. The employer also says that it is aware that the worker had concerns that she may have been made redundant but says that it is reasonably arguable that the steps being taken by the employer to consider the worker's role in the context of the OT's pending maternity leave amounted to reasonable administrative action undertaken in a reasonable manner in connection with the worker's employment.

1. In the hearing, the worker said that she has ongoing diagnoses from two separate medical practitioners that she sustained a mental health injury as a result of high levels of exposure to client trauma. She notes that she has not been asked to undertake an independent medical examination, and says that there is no medical basis put forward by the employer to dispute her claim.
2. She also says that many of the things the employer has raised as part of its factual dispute do not form part of her claim, which has solely been made for injury resulting from vicarious trauma.
3. She disputes the employer's evidence that she was able to debrief and says that is one of the disadvantages from working from home. She says if she wanted to access the EAP provided by the employer, the only way to do so was to request contact details for the EAP from the employer's Human Resources office, and that there was therefore no anonymity provided for employees seeking support.
4. The worker also says that at the time she first sought treatment for her mental health it was well before the other employee, with whom she was friends, was made redundant. The worker says she is able to produce medical records from her general practitioner that support she complained of work related stress on 7 November 2024.

1. The employer says that the evidence of Mr Rundle provides a potential plausible alternative cause of the worker's claimed injury which is inconsistent with liability. It notes that some of the matters raised in Mr Rundle's statement as factual disputes are in fact in response to matters that the worker has raised as part of her claim.
2. Although the employer has not denied that the nature of the work undertaken by the worker and others in the disability space can be confronting, the employer's position is that there are processes in place that would have effectively allowed the worker to debrief and be supported.

1. The Tribunal's role in determining a referral under s 81A does not include the resolution of factual disputes between parties. Essentially, the Tribunal takes the employer's evidence at face value for the purpose of assessing whether a reasonably arguable case has been put forward by the employer in relation to the dispute.
2. Although the worker has submitted that her claim for compensation has been made only on the basis that her claimed mental health injury has been caused by exposure to second-hand trauma through listening to the stories of the employer's clients, I agree with the employer that a fair reading of the claim form is that the injury is also said to have arisen in the context of a lack of training and support, and in circumstances where the work arrangements led to the worker experiencing isolation. All of these things would potentially have relevance to the question of the cause of the worker's injury, and all of which are the subject of factual dispute by the employer.
3. The employer has also raised what it says is a plausible potential alternative cause of the worker's claimed injury that is inconsistent with the employer having liability to pay compensation - specifically the steps that were being taken to enable the employer to make a decision about the worker's role after her Occupational Therapist partner went on maternity leave
4. The concept of a 'plausible potential alternative cause' comes from the observation of Evans J in Coatsworth at [14]:

It is notorious that the genesis for conditions such as stress, anxiety and depression may be multifaceted. The causes may be many and varied and it can be very difficult to identify the most significant causative factor. In the context of litigation, a final determination as to the existence of such a condition and the causative role of any factor, almost invariably turns upon the adjudicator's assessment of the veracity and reliability of the complainant. Accordingly, when a worker claims to suffer from a condition of this nature in circumstances where there are a variety of potential causes for the condition, an employer may show a reasonably arguable case concerning liability by providing evidence of plausible potential causes that are inconsistent with liability.

5. The employer notes that the worker was first certified to be incapacitated for work on 2 December 2024, says it is reasonably arguable that the worker's injury was, at least partially, caused by the issues that arose in November regarding the worker's position (including, on the employer's evidence, the worker's reported concerns regarding potential redundancy). The employer says its argument is supported by the close temporal connection between these issues and the worker first being certified incapacitated for work in early December 2024.
6. Section 25(1A) of the Act relevantly provides:

Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from- > > (a)... > > (b)... > > (c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment;

7. The employer says that it is arguable that the actions it took in exploring its options regarding the worker's ongoing role amount to reasonable administrative action undertaken in a reasonable manner in connection with the worker's employment, and that s 25(1A) would therefore be available to resist liability for the worker's claim at a final hearing.
8. I accept the employer's submission that its evidence supports an argument that it could potentially rely upon s 25(1A)(c) of the Act in relation to the worker's claim. The employer's argument in this regard is not a particularly strong one, but it does not need to be either strong or compelling, only reasonably arguable: Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38.

1. I determine that the employer has demonstrated it has a reasonably arguable case to dispute the worker's claim for compensation.
2. Because I am satisfied a reasonably arguable case exists, I order 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 by the employer from the date of this determination.

_[1]_In context, I infer this is an employee assistance provider