Compensation is not to be paid by the employer to the claimant.

Workers compensation - Entitlement to compensation - Identification of issues in dispute - Reasonably arguable case exists concerning liability of employer to pay weekly payments

Workers Rehabilitation and Compensation Act 1988; ss 67F.

St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90;

Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41;

Attorney-General (Tas) v Smith, Mary Morrison [1994] TASSC 62 (Attorney General v Smith) and Mary Morrison Smith v Attorney-General of Tasmania [1994] TASSC 183; (1994) 4 Tas R 298;

Vos Construction & Joinery Pty Ltd v Norton Smith [2016] TASSC 38;

Military Rehabilitation and Compensation Tribunal v May [2016] HCA 19;

Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45, 200 CLR 286;

Nazar v Hydro Electric Corporation [2022] TASFC 11;

Burrage v Rural Press Limited [2013] TASSC 43;

Long v Kmart Limited [2016] TASSC 6;

Tasmania v Pilling [2020] TASSC 13;.

The decision has been anonymised for the purpose of publication.

1. The claimant made a claim for compensation on 1 July 2024 in respect of the death of her husband. The husband of the claimant was a doctor who worked at a public hospital in Tasmania.
2. The claimant's husband collapsed at home on Christmas day 2023, and died as a result of a fatal heart attack
3. Compensation is payable by an employer to a dependent spouse where a worker dies as the result of an injury suffered by the worker in respect of which the worker's employer is liable to pay compensation under the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).
4. Compensation payable under such circumstances includes weekly payments of compensation payable under s 67A of the WRC Act.
5. There is no dispute that the claimant's husband was a 'worker' for the purposes of the WRC Act. There is also no dispute that the claimant was at least partially dependent on her husband. I will refer to the claimant's deceased husband as 'the worker'
6. The employer disputes that it is liable to pay compensation to the claimant by way of weekly payments under s 67A, and has referred its dispute to the Tribunal under s 67F of the WRC Act.
7. Section 67F of the WRC Act relevantly provides:

(1) If an employer or its licensed insurer disputes liability to pay compensation by way of weekly payments under section 67A, the employer or licensed insurer must, within 28 days of receiving the claim for compensation in respect of the death of the worker -

(a) serve the dependant or dependants of the deceased worker with written notice that the employer disputes liability to pay weekly payments under section 67A; and

(b) inform the dependants of the matters related to the claim that are disputed and the reasons for disputing liability; and

(c) refer the matter to the Tribunal.

(2) Where a claim for compensation is referred to the Tribunal under subsection (1), the Tribunal is to determine whether a reasonably arguable case exists concerning the liability of the employer to pay weekly payments under section 67A.

(3) In determining whether there is a reasonably arguable case concerning a claim for compensation under this Division, the Tribunal is to identify each of the matters relating to that claim that are in dispute, and in relation to each of those matters determine whether a reasonably arguable case exists.

(4) Subject to subsection (7), in any proceedings in the Tribunal, the employer or the employer's insurer is prohibited from raising any issue that it did not raise in a dispute under this section.

(5) The Tribunal must -

(a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or

(b) if the Tribunal considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments to a dependant of the deceased worker, determine that compensation is not to be paid by the employer to that dependant.

1. What I need to determine, in accordance with s 67F(2), is whether a reasonably arguable case exists concerning the liability of the employer to pay weekly payments to the claimant under s 67A of the WRC Act.
2. The test for whether a reasonably arguable case exists was set out by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90:

A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing....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 s81A, 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.

3. Further, in accordance with s 67F(3), if I am satisfied the employer has demonstrated that there is a reasonably arguable case in relation to the dispute, I need to identify each of the matters relating to the claim that are in dispute and in relation to each of those matters determine whether a reasonably arguable case exists.
4. However, the employer has submitted that the words 'matter' and 'issue' in s 67F(3) and (4) ought to be given a broad interpretation, which will make a difference to the specificity with which 'matters' relating to the claim that are in dispute need to be identified, under s 67F(3). I need to firstly resolve that question.

1. The employer says at the question of what is a "matter in dispute" for the purposes of s 67F must be interpreted broadly. Under s 67F(3), it is submitted that a broad interpretation would mean that it would be sufficient in the present case for there to be a determination that the employer has demonstrated the existence of a reasonably arguable case that the worker did not suffer an injury which would be compensable under s 25 of the WRC Act. The alternative, if "matter in dispute" was interpreted more narrowly, is that the employer must put forward a case, and ask the Tribunal to make findings in relation to whether a reasonably arguable case exists in relation to every single issue that could properly arise to be determined in a final hearing.
2. The employer says that a broad interpretation under s 67F is appropriate because s 67F(3) and (4) assume the existence of a certain level of knowledge by the employer, upon receipt of the claim, and that all the issues that might arise in relation to a dispute about liability will be immediately apparent.
3. It is submitted:
   • this seems to have also been assumed by the WorkCover Board (the Board) in the light of the most recently approved claim form to be used by dependents of deceased workers. Section 34(2A) of the WRC Act provides that a claim by a dependent must be in the form approved by the Board. There is nowhere in the worker's section of the approved form to outline details such as when or where the deceased worker's death occurred. That information has been moved to the employer's section.
   • The practical effect is that on receipt of a claim form from a dependent of a deceased worker the employer has no information available to understand how it is said that death is related to the employment. The form only seems to contemplate a situation where the employer is aware of all the circumstances in relation to a worker's death, and there is no longer even any requirement for a death certificate to be provided as part of the claim.
   • Because of this, the employer is at a disadvantage in defending a claim that has been made by the dependant of a deceased worker. Obviously there can be no physical assessment of a deceased worker, but there is also no means by which the employer can access a deceased worker's medical records.
   • This disadvantage is compounded because an employer only has 28 days to dispute the claim, not 84 as in s 81A.

1. Although both s 81A and s 67F require the Tribunal to make a preliminary determination about whether the employer has a reasonably arguable case to dispute a claim, they differ because s 67F also requires the Tribunal identify each of the matters in dispute and in relation to each matter determine whether there was a reasonably arguable case in relation to each issue.
2. By virtue of s 67F(4) the 'matters' identified by the Tribunal under 67F(3) define the parameters for any further dispute if the claim is later referred back to the Tribunal for a final determination.
3. Although I agree that an employer who received a claim for compensation by a dependant under s 67 or 67A may conceivably be at a significant disadvantage in disputing liability for such a claim where the only information available to the employer is contained in the current approved form, I do not think that is a sufficient reason to move away from the clear meaning of the words of s 67F(3).
4. The Tribunal is required, under s 67F(3) to 'identify each of the matters that are in dispute', not simply whether there is a reasonably arguable case that a dispute exists. The determination that the employer says would be appropriate under a 'broad interpretation' of those words - that it is reasonably arguable that the worker did not suffer an injury which would be compensable under s 25 of the Act - would not sufficiently identify the matters in dispute in relation to the claim for the purposes of s 67F(4).
5. It will be necessary for me to consider each of the grounds of dispute raised by the employer in the s 67F referral and make a finding in relation to each of those grounds as to whether a reasonably arguable case exists.

1. As has been referred to above, s 34(2A) of the WRC Act provides that a claim for compensation under s 67[1] or 67A[2] is to be in a form approved by the WorkCover Board. The relevant claim form requires a claimant to complete the form by providing the claimant's details, the deceased worker's details (including name, date of birth, address, name of employer, and the worker's occupation at the time of 'injury/disease'), the nature of the claimant's relationship to the deceased worker, details of dependants, and details of non-dependant family members.
2. The approved claim form does not require a claimant to include any details relating to the date of a worker's death, or the alleged cause of a worker's death. However, the employer section of the claim form requires an employer to provide details relating to the death of a worker in relation to whom a claim has been made, including date and time of fatal injury, date of death, date of diagnosis of a disease and to identify the place where the fatal injury or disease occurred, a description of what happened, and the cause of the fatal injury/disease if known.
3. In the present instance, the employer was aware of the date of the worker's death, but had to request information from the claimant otherwise.
4. Correspondence from the claimant's solicitor was provided to the employer by email of 10 July 2024, who was instructed to advise, relevantly:

Over the period 2018 to his death, escalating through the COVID period, [the worker] was subject to relentless 24/7 stress and pressure in his role [at the hospital]. [The worker] had managed the largest medical department in the State for ten years with little help. He invariably worked seven days a week and was on call 24 hours a day. He had requested for over ten years a deputy and extra staff which was never forthcoming. Workloads and clinical demands became increasingly complex over that period. [The worker] experienced increasing stress levels being concerned about staff shortages, patient outcomes and patients being discharged early into a community that had limited service provisions. He was constantly shielding his medical and nursing staff from the unrealistic pressures in [the hospital], particularly relating to the early discharging of sick patients. In short [the worker] was subjected to continuous and unrelenting stress, which persisted outside his normal working hours. In addition he had persistent conflict with DoH administrators and bureaucrats. In the end, by which time he was completely overwhelmed by this situation, on 25 December 2023 he suddenly collapsed and died of a fatal heart attack.

5. As part of the dispute, the employer relied upon a statement of Ms F Lieutier, who is the Chief Executive Hospitals North with the Department of Health, Tasmania, Health Service. Ms Lieutier's statement, dated 9 July 2024, in part provided details of a meeting involving the claimant, Ms Lieutier and the Secretary of the Department of Health in January 2024, where the claimant read from a prepared document which outlined concerns she had with the way the worker had been treated by the employer. Ms Lieutier outlined that the claimant had been:

Particularly focused on outlining her belief that an announcement by the previous Chief Executive of Hospitals North at the end of May 2023, in relation into planned changes to the portfolio of the Department of Medicine had led to [the worker's] premature death. [The claimant] felt that the announcement to split the Department of Medicine had caused significant distress to [the worker]. [The claimant] wanted to know from the Secretary who had approved the release of the announcement. She did not believe that the Chief Executive had authored the letter herself and felt that she had been directed by someone else, either the Secretary, Minister or Deputy Secretary. Neither the Secretary nor myself were able to provide any further information on this as we were both of the understanding in was issued by the previous CE following a consultation process.

1. The employer disputed liability for the claim on the following grounds, expressed in the s 67F referral:

(a) The employer understands that the worker died as a result of heart attack at home. If this is correct, this is an injury which is not a disease which has not arisen out of or in the course of the worker's employment with the employer.

(b) Alternatively, if the heart attack was a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, the employment was not the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.

(c) In the event that the worker was suffering from coronary heart disease or a diseased heart valve, employment did not contribute to a substantial degree.

(d) It has been asserted by [the claimant] that an announcement by the previous Chief Executive of Hospitals North at the end of May 2023, in relation to planned changes to the portfolio of the Department of Medicine had lead to the worker's premature death. There is no evidence beyond this assertion of any causal connection between the worker's employment and his death. If it is contended that the worker has suffered an injury being a disease, being an illness or disorder of the mind from which the worker's heart attack resulted, the employer denies that the worker suffered from any such injury and that employment had contributed to any such injury to a substantial degree.

(e) On the same basis, in the event that the worker did suffer from any injury, said injury is a disease or a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing disease, being an illness or disorder of the mind, which has arisen substantially from:

(i) A decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment; and/or

(ii) Reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment;

being actions taken by the employer with respect to a change in organisational structure.

(f) The employer further denies that the worker suffered a disease of any sort to which employment contributed to a substantial degree.

(g) The worker (and [the claimant]) has failed to provide notice of the injury to the worker's employer as soon as practicable after the injury and death occurred.

1. As noted above, what is not in dispute is that the worker was employed by the Department under a contract of service, and nor is it in dispute that the applicant in this case was at least partially dependent on the worker.

1. The liability of an employer to pay compensation, arising from s 25(1) of the WRC Act, was discussed by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41[3] (Bradshaw) at [23]:

The authorities also establish that when regard is had to the extended definition of injury contained in subpar (b), there are in fact three available pathways to liability arising from s 25(1). These are:

(a) The worker suffers an injury in the primary sense, that is an injury which is not a disease, but is "something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state". See Military Rehabilitation and Compensation Commission v May [2016] HCA 19, 257 CLR 468, as discussed by Pearce J in Vos Construction v Norton-Smith. Such an injury will be compensable if it arises out of or in the course of the worker's employment.

(b) The worker suffers a disease to which his employment contributed to a substantial degree within the meaning of s 3(2A), that is, only if it is the major or most significant factor.

(c) By virtue of the extended definition of injury and its interaction with s 25(1)(b), an aggravation etc of a pre-existing injury or disease is an injury, but only where the employment was the major or most significant contributing factor to that aggravation. In the case of the aggravation of a pre-existing disease, it is the aggravation, not the underlying disease, which must be causally connected to the employment in the required sense: Long v Kmart Australia Ltd [2016] TASSC 6, 25 Tas R 237, per Porter J at [52].

1. The employer's grounds of dispute are in part based upon the pathways to liability, in that the employer disputes that the worker's death resulted from an injury, howsoever described under the WRC Act, which occurred in compensable circumstances.
2. The employer relies upon a report by Dr R Chua, who is a Physician/Cardiologist. Dr Chua expressed the opinion, in his report dated 10 July 2024, based on material provided for the purposes of the report[4], that the worker's heart attack was primarily caused by factors other than his employment. Dr Chua outlined in his report:

Therefore, in response to the question of whether it is more likely than not that [the worker's] heart attack was primarily caused by factors other than his employment, considering the following: > > (1) That obesity and/or a significantly overweight body habitus, hypertension and a family history of vascular disease are commonly accepted strong risk factors for developing cardiovascular disease. > > (2) The [the worker] was observed on several occasions by his colleagues prior to his heart attack to be short of breath after relatively mild levels of physical activity which is commonly known to be a manifestation of heart disease. > > I would be in agreement with the statement that is more likely than not that [the worker's] heart attack was primarily caused by factors other than his employment. A degree of work related stress on its own, in the absence of pre-existing cardiovascular risk factors or cardiovascular disease, is very unlikely to be accepted medically as being significantly or solely responsible for poor cardiovascular outcomes.

3. An email from Dr Scott Parkes, Intensive Care Medicine Specialist, to the claimant's solicitors advised that post mortem examination of the worker had revealed a coronary artery thrombosis of the left anterior descending coronary artery. Dr Parkes in his email went on:

For this to have happened there must have been a precipitating vascular injury in that territory. Such a vascular injury is either rupture and fissuring of an atherosclerotic plaque, or less commonly, spontaneous coronary artery dissection. Bother are sudden events, and are the common proximate causes of coronary thrombosis and myocardial infarction. > > In plain English [the worker] had unsurvivable damage to his heart muscle caused by thrombosis, or formation of a blood clot in the main vessel that supplies blood to the heart muscle itself. The underlying cause of this relates to thickening, scarring and irregularities of these coronary arteries that supply blood to the heart. These thickenings develop over some years, but are often silent because they do not significantly interrupt the flow of blood. For a heart attack, or myocardial infarction to occur; a clot or thrombosis forms over the area of atherosclerosis to completely obstruct the vessel. This is always caused by a sudden injury to the vessel. That injury is most often sudden rupturing of an area of atherosclerosis, exposing a fissure which then activates the blood clotting cascade. The other main injury is that of spontaneous coronary artery dissection, where the vessel splits and a flap inside the vessel blocks blood flow, again with clot formation because of this.

4. In the light of the email authored by Dr Parkes, the employer sought a supplementary report from Dr Chua's. The supplementary report is dated 6 August 2024. Dr Chua was provided with Dr Parkes' email and asked the following:

If you were to accept was Dr Parkes has said is accurate, did [the worker's death] result from:

(a) Coronary heart disease; or

(b) A diseased heart valve; or

(c) An aortic aneurysm.

Please explain.

I can confirm that if I were to accept Dr Parkes' statement about the results of [the worker's] post mortem examination, including that [the worker] was found to have a coronary artery thrombosis in the left anterior descending artery, then this would be a confirmation that [the worker's] death resulted from coronary heart disease. The reason is that for such an injury to occur, significant coronary atherosclerosis would have been present, and I suggest that it would likely have resulted in a spontaneous rupture or fissuring of the atherosclerotic plaques, leading to thrombosis or clot formation in the coronary artery. As the location of the thrombosis appears to have occurred in the left anterior descending artery, which could be considered the main prognostic vessel in the cardiac vasculature, this sudden catastrophic event is most likely the explanation for [the worker's] death.

2. Both parties have filed evidence relating to the worker's state of health and fitness in the lead up to his death. On the face of those materials, there may be factual disputes between the parties in that regard. As per Coatsworth, the question of whether a reasonably arguable case exists precludes a final determination of a disputed question of fact.

1. The employer says that the worker did not suffer an injury, not being a disease, arising out of or in the course of his employment.
2. Is it reasonably arguable that the worker's heart attack was not an injury that was not a disease?
3. The employer refers to Attorney-General (Tas) v Smith, Mary Morrison [1994] TASSC 62 (Attorney General v Smith) and Mary Morrison Smith v Attorney-General of Tasmania [1994] TASSC 183; (1994) 4 Tas R 298 (Smith v Attorney General) and says that the worker's injury in the present case does not meet the description of an injury, not being a disease.
4. Attorney-General v Smith and Smith v Attorney-General dealt with the nature of the injury where a worker had suffered a cerebral aneurism. Zeeman J, at first instance, with whom the Full Court ultimately agreed, held at [18]:

I consider that the key to the distinction between injuries which are and which are not diseases is to be found in the word "development" appearing in the definition of "disease". That word suggests that the definition is limited to conditions which might be said to develop. It is implicit from the use of that word that the definition is concerned with autogenous conditions and conditions which find their origin in the environment in which a worker finds himself which naturally progress (whether gradually or suddenly) as distinct from physiological change, not related to any such condition, which results from external trauma. The external trauma which made the pre-existing tinea (which in itself was a disease) in Pasminco Australia Ltd v Fairchild (supra) incapacitating did not result in the worker having suffered an injury other than a disease. It remained a disease, namely tinea. On the other hand the physiological change which occurs when a worker falls and breaks his leg is not an injury which is a disease because it cannot aptly be described as having developed in the relevant sense. Where an injury finds its origin in an external traumatic event causing immediate injury and is unrelated to any condition from which the worker is suffering, it is not an injury which is a disease because it cannot be said to have developed.

It is not appropriate to separate, into an injury which is a disease and an injury which is not a disease, a clinical condition which, without external intervention, makes the subject prone to suffering, and results in the subject actually suffering, a condition which by spontaneous operation of the body causes disablement.

1. The claimant says that Dr Parkes' evidence establishes that the worker suffered an injury simpliciter - in that there was likely either a sudden rupturing of an area of atherosclerosis, or a spontaneous coronary artery dissection - either of which would fit the description of a sudden injury to the particular blood vessel supplying blood to the worker's heart.
2. The claimant says that this would fit the description of a "sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state", as referred to in Vos Construction & Joinery Pty Ltd v Norton Smith [2016] TASSC 38 (Vos).
3. In Vos, Pearce J analysed the statutory basis of an employer's liability to pay compensation. His Honour noted Military Rehabilitation and Compensation Tribunal v May [2016] HCA 19 and Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45, 200 CLR 286, where the High Court referred, in both cases, to an injury occurring where there has been "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state". However, Pearce J noted at [21] that both cases considered legislation which is 'comparable, though not identical' to the WRC Act.
4. The question of whether the High Court decisions referred to above ought to be followed in the preference to the Full Court in Smith v Attorney-General has not been considered by the Tribunal, or by the Supreme Court.
5. As with a referral under s 81A, the hearing of a s 67F referral is not the forum to resolve that question. Nor is it the forum to resolve the question of whether the worker's injury was an injury within the meaning of s 25(1)(a) of the WRC Act.
6. I find that the employer has demonstrated the existence of a reasonably arguable case, following Smith v Attorney-General, that the worker did not suffer an injury, not being a disease, within the meaning of s 25(1)(a) of the WRC Act on 25 December 2023 when he suffered a heart attack.

Ground (a): An injury not arising out of, or in the course of employment?

1. The employer also says that even if the worker did suffer an injury, not being a disease, that injury did not arise out of or in the course of the worker's employment. The employer's position is that that the worker was on call at the hospital on 23 and 24 December 2023, but was not on call between 8.00am on 25 December 2023 and 8.00pm 26 December 2023, which was a period in which the worker's heart attack occurred.
2. The claimant relies upon two statutory declarations made by herself. The claimant says, in her statutory declaration dated 26 July 2024, that the worker's employment required him to be on call 24 hours a day, seven days a week, including being required to physically attend the hospital, as part of his responsibility supervising registrars within his department at the hospital where registrars did not have training to deal with particular situations. This would include a 'code brown' at the hospital (which the claimant described as arising from transport accidents, chemical spills or a mass casualty event external to the hospital). The claimant says that the worker was required to undertake a 72-hour shift as a replacement for the locum Registrar Executive Doctor Medical Services (EDMS), and as soon as that finished the worker reverted to his "24/7 call arrangements" (I take this to mean being on call 24/7). The claimant says that the worker's telephone records show that he undertook a meeting at 9.30am that day and continued to supervise the locum EDMS. The claimant says that as the worker was supervising the locum EDMS, the worker may have been required to attend the hospital in person.
3. The claimant also relies upon an email from Dr Parkes to the claimant's solicitor, dated 6 August 2024, outlining Dr Parkes' experience with being on call 1:1 at the hospital. Dr Parkes expressed his opinion that the worker was effectively on call on Christmas day to provide back up, on the basis that the medical administrator on call was not a fully qualified consultant, and that having regard to the roster the worker was 'the final point of call for medical administration'.
4. The employer relies upon a statement in response by Ms Lieutier, dated 7 August 2024. In addition to confirming that the employer says the worker was not on call on 25 December 2023, Ms Lieutier stated the following:
   • It was not a requirement of the worker's contract of employment that he be available between 8:00am on 25 December 2023 and 8:00pm 26 December 20243.
   • It was not a requirement of the worker's employment that he be on call 24 hours a day, 7 days a week, 52 weeks a year.
   • the worker was not (contrary to the claimant's statement) required to work a straight 72 hour shift on 22 December 2023. The 72 hour period included regular work hours plus on call availability.
   • The person referred to by the claimant as EDMS Registrar was employed as the Deputy EDMS, not a Registrar. That person had the expertise and qualifications to manage any situation required of the EDMS and did not require additional supervision from either the substantive EDMS or the worker.
   • If a code brown, or any circumstance requiring an EDMS response had occurred on 25 December 2023, the Deputy EDMS would have been the responsible person to provide the EDMS response, not the worker.
5. The claimant says that Ms Lieutier's evidence that the worker was not on call on 25 December 2023 is incorrect, and submits that the worker was 'permanently on call on a 1:1 roster' within the meaning of Medical Practitioners (Tasmanian State Service Award). The submission is that by virtue of the relevant award and payment of an on call 1:1 allowance, irrespective of what the employer says, the worker was in fact on call and by virtue of that either had to receive telephone calls or attend the hospital.
6. On that basis, and having regard to Nazar v Hydro Electric Corporation [2022] TASFC 11, the claimant submits that the worker's heart attack was an injury, not a disease, that occurred in the course of the worker's employment, and that I ought to make a finding accordingly.
7. The ultimate determination of whether the worker was, or was not, in the course of his employment at the time he suffered the heart attack, is not a determination that can be made as part of an employer's s 67F referral. As with a referral under s 81A, the Tribunal is only required to determine whether the employer has demonstrated the existence of a reasonably arguable case. The comments of Wood J in Burrage v Rural Press Limited [2013] TASSC 43 (regarding a referral under s 81A before the Workers Rehabilitation and Compensation Tribunal) at [40] are applicable:

It is not contended that the Commissioner erred in not resolving the issue. In my view there are sound and practical considerations which favour the course taken by the Commissioner. This was not a case involving an unmeritorious legal argument which could be readily dismissed, or an obviously correct argument which could be readily upheld. The argument before him occurred at an interim stage and the legal issue is likely to receive more comprehensive attention at the final hearing, where arguments would be developed more fully. A determination at an interim stage would not be binding at the final hearing, and on receiving further argument, he would then be obliged to revisit the legal issue. At a final hearing he would have the benefit of all the evidence and the issues would be refined and factual determinations made. There may be inferences to be drawn and nuances of fact that would prove significant in terms of the outcome of this claim. The law may then be determined in light of those factual findings and to the extent required by those factual findings.

8. I find that the employer has established the existence of a reasonably arguable case that the worker did not, on 25 December 2023, suffer an injury not being a disease arising out of or in the course of his employment.

1. The employer says that the medical evidence put forward by both parties excludes, by implication, the possibility that the worker's death was as a result of an injury that meets the extended definition of injury under s 3 of the WRC Act - that is an injury that is a recurrence, aggravation, acceleration, exacerbation or deterioration, of any pre-existing injury or disease.
2. In the alternative, the employer also relies upon Dr Chua's opinion to support an argument that the worker's death was not a result of an 'extended definition' injury to which the worker's employment was not the major or most significant contributing factor.
3. On the face of the medical evidence relied upon by the parties, it does not appear that either Dr Chua or Dr Parkes were asked to consider the extended definition of injury under the Act in the context of the worker's death.
4. On the face of Dr Chua's opinion as contained in his supplementary report, 'spontaneous rupture or fissuring of the atherosclerotic plaques, leading to thrombosis or clot formation' would appear to fit within the extended definition of injury under the WRC Act, by way of, at least, potentially aggravation, acceleration, deterioration or exacerbation of pre-existing heart disease: See Long v Kmart Limited [2016] TASSC 6. There is nothing to suggest that the worker may have suffered an injury that was a recurrence of a pre-existing condition, nor that there was an aggravation, exacerbation, deterioration, recurrence or acceleration of a pre-existing injury.
5. What can be taken from Dr Chua's opinion is that it is arguable that if it was ultimately determined that the worker's heart attack was an injury that falls within the extended definition of 'injury' under s 3 of the WRC Act, that injury was not one to which the worker's employment was the major or most significant contributor.
6. I find that the employer has established that there is a reasonably arguable case to dispute that the worker suffered an injury by way of acceleration, exacerbation, aggravation or deterioration of an underlying disease to which his employment was the major or most significant contributing factor to that aggravation, acceleration, exacerbation or deterioration.

1. Pursuant to s 25(1)(b) of the WRC Act, an employer is liable to pay compensation to a worker who suffers an injury which is a disease, and to which his employment contributed to a substantial degree within the meaning of s 3(2A) of the WRC Act.
2. Section 3(2A) of the WRC Act provides that employment contributed to a disease to a substantial degree only if it is the major or most significant factor.
3. The employer relies upon the expert reports of Dr Chua, in support of the argument that the worker's death was a result of an injury, which is a disease (namely heart disease), and that the worker's employment was not the major or most significant contributing factor to the injury which caused his death.
4. I am satisfied that the employer has established there is a reasonably arguable case to dispute the claim under this ground.

Ground (d): an injury caused by work-related stress?

1. The employer says in the s 67F referral that this ground of dispute has been put forward in response to the assertions by the claimant[5] that an announcement in May 2023 in relation to planned changes to the portfolio of the Department of Medicine at the hospital had led to the worker's death. The employer says there is no evidence beyond this assertion of any causal connection between the worker's employment and his death.
2. I also note the email from the claimant's solicitor to the employer dated 10 July 2024, which was provided in response to the request seeking information with respect to the circumstances regarding the worker's death. The correspondence refers to the worker's increasing stress levels, that he had been subjected to 'continuous and unrelenting stress' and 'persistent conflict with DoH administrators and bureaucrats', and that the worker was 'completely overwhelmed' by the situation at the time he collapsed and died from the fatal heart attack. A fair reading of that correspondence is that the claimant attributes the worker's death to work related stress, although the claimant has not identified that the worker had suffered any specific or diagnosable mental health injury.
3. Ms Lieutier, in her statement dated 9 July 2024, outlined:

Prior to his death, [the worker] had not reported any concerns to me over workload, work related stress or any other psychosocial hazards in the workplace. I last saw [the worker] during the week ending 15 December 2023, when he dropped in to my office to let me know that he would be covering the EDMS on-call over the Christmas period and wished me a good Christmas. At that time he was chatty, appeared cheerful, and did not complain of any workplace stress.

4. On the basis of Ms Lieutier's statement, and in the absence of any evidence that the worker suffered a psychological or psychiatric injury as a result of work stress, I find that it is reasonably arguable that the worker did not suffer a psychological or psychiatric injury as a result of work stress.
5. If it is asserted that work-related stress caused or substantially contributed to the worker's fatal heart attack, I find that it is reasonably arguable, based on Dr Chua's opinion, that work related stress, in the absence of pre-existing cardiovascular disease is unlikely to be accepted as being significantly responsible for poor cardiovascular outcomes.

1. This ground of dispute also arises from the assertions by the complainant in relation to the connection between the worker's death and work related stresses, in particular the reference to the announcement made by the former CE in May 2023.
2. The employer relies upon Ms Lieutier's statement dated 9 July 2024 in relation to the announcement in May 2023 about intended changes to the hospital, part of which has been set out above.
3. Ms Lieutier also set out in her statement:

Between June and November 2023, I had conversations with [the worker] where amongst other things, we discussed the change proposal, that the intent was still to split the portfolio but that it would not occur without consultation with [the worker] and his staff. [The worker] seemed appreciative of that approach and also indicated that he wanted to take the lead in planning the changes with his staff. We had agreed that we would aim to implement changes by the end of the 23/24 financial year. He did not indicate that this was causing him any undue distress, other than his displeasure at the announcement in May 2023.

4. If it is asserted that the worker suffered psychological injury as a result of the employer's May 2023, announcement then the employer says it is reasonably arguable that any such injury was caused either by:
   • a decision not to award or provide a promotion, transfer or benefit in connection with the worker's employment in accordance with s 25(1A)(b) of the WRC Act; or
   • reasonable administrative action, undertaken in a reasonable manner in connection with the worker's employment, in accordance with s 25(1A)(c) of the WRC Act.
5. I find that it is arguable that any illness of the mind or disorder of the mind that might have been suffered by the worker resulting from the announcement by the employer in May 2023, arose substantially from reasonable administrative action undertaken in a reasonable manner by the employer in connection with the worker's employment.
6. However, I am not satisfied that the employer has shown that there is a reasonably arguable case in relation to the ground of dispute that relies upon s 25(1)(b) of the WRC Act. I do not consider there enough evidence in that regard, and the employer did not make any specific submissions in relation to that aspect of the referral.

1. The employer says that if the worker did not suffer from a coronary heart disease, but suffered some other disease that led to the worker's fatal heart attack, the evidence supports an argument that the employment did not contribute to that disease to a substantial degree withing the meaning of s 3(2A).
2. For the same reasons set out in relation to ground (c) of the dispute, I am satisfied that the employer has established there is a reasonably arguable case that the worker did not suffer an injury which is a disease to which his employment contributed to a substantial degree.

Ground (g): failure to give notice of injury as soon as practicable

1. The employer says that this ground of dispute has been included in an abundance of caution. It does not contend that there was a failure to provide notice of injury in accordance with the WRC Act in relation to the worker's fatal heart attack. However, if it is ultimately asserted that the cause of the worker's death was a psychological injury occurring earlier at an earlier time, the employer said in that case notice of injury has not been provided as soon as practicable after the occurrence of the injury, as s 32(1)(a) of the WRC Act requires.
2. In Tasmania v Pilling [2020] TASSC 13, Brett J held at [41] that:

...for the purposes of s 81A, an employer will not establish a reasonably arguable case that it is not liable to pay compensation because of the worker's failure to give notice of injury as soon as practicable, unless it establishes a reasonable argument that s 37 will not apply to the relevant failure.

3. This would apply equally to s 67F. Section 37 of the WRC Act, in part provides that a failure to give notice of injury will not affect a worker's right to claim compensation if the failure was occasioned by mistake, absence from the State or other reasonable cause. There is nothing before me in that regard.
4. If it is alleged that the worker suffered a psychological or psychiatric injury as a result of the announcement by the employer in May 2023, or as a result of his employment at any other time, it is reasonably arguable, based on the materials before me, that notice of such an injury was not given to the employer as soon as practicable after the occurrence of the injury, in accordance with s 32(1)(a).

1. Because I have determined that a reasonably arguable case exists concerning the liability of the employer to pay weekly payments under s 67A, I order that compensation is not to be paid by the employer to the claimant.

[1] A claim by a dependent for a lump sum where a worker dies as a result of a compensable injury.

[2] For weekly payments to a dependent or dependents of a deceased worker who died as a result of a compensable injury.

[3] Upheld on appeal in Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 5.

[4] Those materials were also filed as part of the employer's s 67F referral.

[5] As reported by Ms Lieutier in her evidence set out at [24] above.