Weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI of the Workers Rehabilitation and Compensation Act 1988 are not to be paid by the employer in respect of the worker's intervertebral disc prolapse at L4/5.

Workers compensation - Entitlement to compensation - Employer accepted liability for particular injury - Employer disputed liability for a different injury - Whether Tribunal has jurisdiction - Worker conceded existence of reasonably arguable case if Tribunal has jurisdiction.

Workers Rehabilitation and Compensation Act 1988; s 81A.

Programmed Property Services Pty Ltd v DBK [2024] TASCAT 220; Pasminco Australia Ltd v Fairchild [1991] TASSC 74.

This decision has been anonymised for the purposes of publication.

1. The worker made a claim for workers compensation which was received by her employer on 8 January 2025. The claim form was dated 6 January 2025, and accompanied by two workers compensation medical certificates - an initial certificate dated 30 November 2024, and a subsequent certificate dated 6 January 2025.
2. The claim was for an injury which was said to have occurred on 29 November 2024. In the claim form the worker set out:

I was walking up the driveway at work and did a jump off the ground. I continued on and finished my shift.

My back and left leg are extremely sore. MRI results to confirm suspected ruptured disk and compressed sciatic nerve.

1. The initial workers compensation certificate in support of the claim, dated 30 November 2024, recorded the stated cause of injury as:

Patient jumped in driveway at work on 28/11/2024. Gradually worsening of lumbar back pain.

The worker was noted to have symptoms of lumbar of back pain with radiation to her lower limb. Possible diagnoses of musculoskeletal injury or disc herniation were raised. The worker was certified incapacitated for work from 30 November 2024 until 4 December 2024.

1. The subsequent workers compensation medical certificate dated 6 January 2025, that was also delivered with the claim recorded the worker's symptoms as:

Lt buttock - down back of leg/knee/calf/ under foot/toes, paraesthesia. Paraesthesia - vagina. No incontinence.

The certificate diagnosed the worker to have suffered an L5/S1 disc herniation, and noted there had been an MRI scan performed on 3 January 2025.

1. The employer disputed liability to pay compensation to the worker. It referred the dispute to the Tribunal under s 81A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
2. Where an employer disputes a claim under s 81A of the Act, the Tribunal is required to determine whether the employer has demonstrated the existence of a reasonably arguable case in relation to the dispute.

1. Although the worker in the claim form referred to the incident in question having occurred on 29 November 2024, the initial certificate, which was created much closer in time to the incident, refers to it occurring on 28 November 2024. This is also consistent with the history that the worker gave to Dr Davison. I will assume the date of the incident was 28 November 2024 for the purpose of this decision. At this stage, nothing turns on the particular date.
2. The dispute put forward by the employer is slightly complicated. The employer concedes that in the incident on 28 November 2024, when the worker jumped in the air, she suffered an injury by way of an exacerbation of an underlying low back condition. The employer does not dispute that the worker suffered an injury within the extended definition of injury under the Act in compensable circumstances.
3. However, the employer also says that the worker has suffered another injury, an intervertebral L4/5 disc prolapse, which the employer says is not compensable
4. The employer, by its s 81A referral, seeks to dispute only its liability to pay compensation to the worker in respect of the disc prolapse, but not for the exacerbation of the low back condition.
5. The worker says that what the employer is seeking to do is 'carve out' a pre-existing injury in the form of a disc protrusion, which the worker says the employer may not do under s 81A. However, the worker concedes that if I determine that the employer is able to separately dispute the disc prolapse injury, the employer has demonstrated that a reasonably arguable case exists in respect of the s 81A referral.
6. What I therefore need to determine is the preliminary question raised by the worker in relation to whether the employer is able to dispute the claim as it has purported to do.

1. The employer's dispute in relation to the worker's claim is in the following terms:

Insofar as the worker has suffered an intervertebral disc prolapse at the L4/5 segment with left L5 nerve root involvement/disc herniation at L4/5 causing moderate canal stenosis and left L5 root compression, the worker has not suffered:

(a) an injury which is not a disease which has arisen out of or in the course of her employment with the employer;

(b) an injury which is a disease to which the employment contributed to a substantial degree within the meaning of s 3(2A) of the Act; or

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.

1. The employer, in support of the dispute, relied upon a report of Dr Gary Davison dated 12 March 2025.
2. Dr Davison's report disclosed that he had examined the worker on 27 February 2025, that he had had available to him clinical notes of the worker's consultation at the North West Regional Hospital on 30 November 2024 (as a result of which the initial certificate was issued), general practitioner records from 16 December 2024, when the worker first attended her GP, and records of an attendance at the Launceston General Hospital on 1 January 2025.
3. Dr Davison took a history from the worker and conducted a clinical examination. He noted that the worker had a significant past history of lower back pain and left-sided sciatica. He recorded the following history of what happened on 28 November 2024, and the subsequent development of symptoms:

[The worker] recalled that she was walking with others, including a co-worker from the kitchen. The other smokers began singing a song. It was in the context of that activity while walking up the inclined driveway that she 'jumped up'. She said that when she landed, she felt "some pressure in my back". She remained at work for the rest of that day and did not report her injury. > > When she woke up the following day, she was aware of lower back pain, which caused her to be unable to straighten up. The symptoms worsened. She was visiting her mother in Exeter at the time and recalled that she 'got stuck on the toilet'. Subsequently, she attended the Latrobe Hospital Emergency Department. She was given an injection of an anti-inflammatory medication and recommended to take Panadol or Nurofen for pain relief. She was advised to rest. > > [The worker] recalled that she was 'walking around crooked'. She stated at some point, she began to experience left lower limb pain and sensory disturbance. > > [The worker] recalled seeking medical treatment at the urgent clinic in Newstead. She was uncertain as to when this occurred. She was prescribed Lyrica and an anti-inflammatory medication. > > I note that [the worker] did attend her General Practitioner on 16 December 2024. The clinical notes, however, made no reference to left-sided sciatica symptoms. She also attended her regular general practice clinic on 31 December 2024 and was prescribed Valium. Once again, there was no record of left lower limb symptoms being reported_._ > > On New Year's Day, [the worker] attended the Launceston General Hospital because of severe pain. She was admitted to the facility overnight. She was prescribed tapentadol, amitriptyline, and ibuprofen_._ > > A magnetic resonance imaging (MRI) Scan was subsequently arranged. I note that report, dated 03 January 2025, which was reported by M. Kulkarni on 07 January 2025, with the clinical indication being: 'Lower back for six weeks gradually worsening over two weeks, pins and needles with back of thigh and foot pain'. > > I note the conclusion of the MRI report: 'Large disc herniation at L4/5 causing moderate canal stenosis and left L5 nerve root compression'. Within the body of the report, there was no evidence of facet joint degeneration. There was a minor disc bulge at the L5/S1 segment, but no neural compromise, while the L1/2 and L2/3 discs retained height and configuration without neural compromise_._

4. Dr Davison was asked a number of questions, and those questions and responses, relevant to this decision, are as follows:

Question 4: What history did [the worker] report in relation to her injury and the onset and progression of her symptoms? > > [The worker] reported that after doing a small jump while singing during a designated break at work on 28 November 2024, she experienced "some pressure in my back". The following day, she reportedly developed lower back pain. Symptoms worsened, and she subsequently developed pain and sensory disturbance affecting the left lower limb to the foot region. > > It is unclear when [the worker] developed symptoms of left 'sciatica'. This was first described in clinical notes on 01 January 2025, more than one month post-injury. Her condition has improved, and symptoms are now intermittent. She estimates a '60%' level of recovery at this stage. > > For further details in relation to the history reported by [the worker] in relation to her injury, see the above section 'History of Injury'. > > Question 5: What symptoms does [the worker] currently present and report? > > [The worker] advised that she experiences intermittent pain in the central lower back region. The pain occurs each day and lasts from a few seconds to a few minutes. She also reported that she has experienced intermittent pins and needles affecting the perineal region. For further details in relation to the symptoms reported by [the worker], see the above section 'Current Status'. > > Question 6: Are the symptoms consistent with the mechanism of injury as described by [the worker]? Please explain. > > In my opinion, the mechanism of injury described by [the worker] is unlikely to have caused an intervertebral disc prolapse. Her left lower limb symptoms, the result of a left-sided intervertebral disc prolapse at the L4/5 segment, are also unlikely to have been caused by such a mechanism of injury. I accept that the incident probably precipitated an exacerbation of lower back pain, given the past history noted above. > > Question 9: What is your diagnosis (if any)? > > The diagnosis is that of gradually resolving intervertebral disc prolapse at the L4/5 segment with left L5 nerve root involvement. There has been a partial recovery. > > I consider, however, that [the worker's] compensable injury is best described as an exacerbation of a pre-existing lower back pain. At some point, she developed an intervertebral disc protrusion, which resulted in the left lower limb symptoms. It is not clear what caused the intervertebral disc prolapse, but it cannot be explained on the basis of the alleged incident which occurred while in the context of a dedicated work break on 28 November 2024. > > Question 10: Is the diagnosed injury:

1. An injury simpliciter (not being a disease)?
2. A disease?
3. Is it a recurrence, aggravation, acceleration, exacerbation or deterioration of any preexisting injury or disease?
4. A natural progression of an underlying/pre-existing condition.
5. A combination of the above or
6. Other? Please explain.

I consider that there are two different aspects to [the worker's] diagnosed injury. One is an exacerbation of a pre-existing condition, and the other is a spontaneous onset of an intervertebral disc prolapse and left L5 nerve root irritation. > > I consider [the worker] most probably suffered an exacerbation of a previous lower back condition as a result of the alleged incident on 28 November 2024. > > It is not clear when the intervertebral disc protrusion at L4/5 occurred, but it cannot be explained on the basis of the alleged incident which occurred while in the context of a dedicated work break on 28 November 2024. > > Question 11: With respect to your answer to the above;

7. If [the worker] suffered an injury, did it arise out of or in the course of her employment?
8. If [the worker] suffered a disease, was her employment the major or most significant factor to the disease and to which her employment contributed to a substantial degree? If so, what specific aspects of his employment have contributed to this disease to a substantial degree?
9. If [the worker] suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, has her employment been the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation, or deterioration? What is the pre-existing injury or disease?

[The worker] developed an exacerbation of pre-existing lower back symptoms while on a designated break at work. She was not undertaking her usual workplace activity, being on such a designated break. Therefore, workplace activity, per se, has not caused [the worker's] condition. > > I am unable to say when she developed intervertebral disc protrusion and symptoms of left lower limb sciatica. The cause of that condition is unclear, but as previously stated, it cannot be explained on the basis of the alleged incident which occurred during a dedicated work break on 28 November 2024. > > I do note, however, that [the worker] has had previous episodes of left lower limb sciatica, but no radiological investigations have been undertaken in the past. > > Question 12: What did [the worker] report as the cause of her diagnosed injury? > > [The worker] advised the cause of her injury to be the incident at work on 28 November 2024. > > Question 13: Do you accept that this is the cause? Please explain. > > Such a mechanism of injury is unlikely to have caused an intervertebral disc prolapse. The activity, however, has most probably caused an exacerbation of a pre-existing lower back condition. > > Question 14: In your opinion, what is the cause of [the worker's] diagnosed injury? If there is more than one contributing factor, please identify which is the single major or most significant contributing factor. > > I consider that there are two different components of [the worker's] diagnosed injury. One is an exacerbation of a pre-existing condition, and the other is a spontaneous onset of an intervertebral disc prolapse and left L5 nerve root irritation.

1. Dr Davison was of the opinion that the worker was partially recovered from the effects of the injury sustained on 28 November 2024, and required ongoing physiotherapy for a period of time for that condition. He agreed with a treatment proposal that the worker undergo an epidural cortisone injection, and have neurosurgical assessment, but Dr Davison considered those expenses were appropriately attributable to the worker's disc protrusion, and not to what he considered to be the work-related exacerbation.

1. The employer says that Dr Davison's evidence supports the employer's evidence that the worker's claim is in respect of two separate injuries: firstly, the exacerbation of the worker's underlying pre-existing condition, and secondly, the disc prolapse at L4/5.
2. The employer accepts that it is liable to pay compensation to the worker in respect of what has been identified as the 'exacerbation injury' but disputes that it has liability to pay compensation for the injury that is the disc prolapse. The employer says that Dr Davison has identified that these are separate injuries, both of which are causing symptoms.
3. The employer refers to Programmed Property Services Pty Ltd v DBK [2024] TASCAT 220 (DBK) in support of its position. That was a decision where a worker alleged to have suffered a number of different injuries in an incident at work which had occurred approximately fifteen months prior to the claim being made. The employer accepted that the worker had suffered a compensable injury to his hip, but disputed that he had suffered an injury to his low back as claimed. A jurisdictional issue was raised, where the worker said that where an employer concedes there is some foundational liability arising from a causative event, s 81A has no operation, and the Tribunal therefore has no jurisdiction to hear a referral under s 81A. I determined that the Tribunal had jurisdiction to hear the referral. I noted at [14 - 15]:

On the face of the claim, the worker is asserting that he has suffered several injuries, to different parts of his body, in the incident identified in the claim form. The claim form itself clearly contemplates that the worker may suffer discrete injuries arising from a particular set of circumstances. > > There is no reason why an employer may not accept that a worker suffered a particular injury in a work-related incident, but dispute that the worker suffered a different injury in the same incident.

4. The worker says the claim arises out of an injury that occurred as a result of the incident in November 2024, and the injury identified by the worker in her claim form is a ruptured disc and compressed sciatic nerve. The worker notes that the initial workers compensation certificate refers to 'current symptoms' of lumbar back pain with radiation, and diagnoses a disc herniation.
5. The worker says the employer, relying on Dr Davison's opinion, is attempting to split the worker's claim into two injuries, which are a pre-existing disc prolapse, and the exacerbation injury. The worker says the worker's incapacity for work has been caused by the exacerbation of the worker's underlying condition, and that Dr Davison has not opined that the worker experiences any incapacity for work as a result of the disc prolapse.
6. The worker says that DBK is distinguishable from the present case because in DBK the claim that had been made by the worker was in respect of several injuries to different parts of the worker's body, whereas in the present case the worker's claimed symptoms are all localised to the worker's back area.
7. The worker also refers to Pasminco Australia Ltd v Fairchild [1991] TASSC 74, which is authority for the proposition that a worker does not suffer an injury which is a disease for the purposes of the Act until the worker is incapacitated for work. The worker says that the incapacity for work in the present case commenced on 30 November 2024, when the worker was first certified to be incapacitated for work, and the employer ought not be permitted to carve out liability for the pre-existing prolapsed disc.

1. I observe at the outset that the parties appear to be at cross purposes about the effect of the medical evidence in relation to this claim.
2. The employer's case, based on Dr Davison's opinion, is that the worker suffered an exacerbation of her underlying low back condition in the incident on 28 November 2024, but that she subsequently experienced a disc prolapse at L4/5 between the date of the incident and the date she made her claim for compensation. The worker's submissions are based on the disc prolapse having occurred prior to the incident on 28 November 2024, and being a pre-existing condition.
3. With respect, I do not think the worker's interpretation is supported by the material that is before me. On the face of the claim form, the worker alleges that she sustained a ruptured disc and compressed sciatic nerve as a result of the incident on 28 November 2024. None of the worker's compensation medical certificates indicate that there was a pre-existing disc herniation. Dr Davison in his report refers to there being a lack of clarity about when the worker developed symptoms of left sciatica, and notes the symptom was first described in clinical notes at the Launceston General Hospital on 1 January 2025. Although he does not specifically state that the disc prolapse occurred at some time after 28 November 2024, an overall reading of Dr Davison's report makes it clear that he considers the disc prolapse was not pre-existing, but occurred after the November 2024 incident.
4. Similarly to the factual scenario on DBK, this claim for compensation has been made some time after the incident that is alleged to have caused the injury that is the subject of the claim. What is also similar is that the employer concedes that there was one kind of injury suffered at the time of the identified incident, but disputes that another particular injury was suffered in the same incident.
5. I apply the same reasoning as in DBK. An employer may accept that it has liability to pay compensation to a worker in relation to a particular injury arising from a work-related incident, but dispute that it has liability to pay compensation to the worker in respect of a different injury that is said to have arisen from the same incident.
6. Whether or not an employer succeeds in raising such a dispute will turn on the facts of each case. Although, as pointed out by the worker, the claim and dispute in this case are not in respect of injuries to different parts of the body (as was the case in DBK) but the evidence of Dr Davison very clearly differentiates between two different low back injuries, where he considers one to be work-related, and the other, occurring later in time, not.

1. I determine that the employer's referral raises a ground of dispute that is available to the employer under s 81A, and the Tribunal has jurisdiction to hear the referral.
2. I note the worker's concession that if the Tribunal does have jurisdiction, a reasonably arguable case exists concerning the employer's liability to pay compensation to the worker in respect of the worker's intervertebral disc prolapse at L4/5.
3. I therefore 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 by the employer in respect of the worker's intervertebral disc prolapse at L4/5 from the date of this determination.