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

1. The worker made a claim for compensation dated 13 January 2025. In his claim form, he identified that his injury had occurred in November 2023. He described how the injury occurred:

After being two injuries at work. Relationship with employer got fractured and my employer came to my house and blackmailed me - threatening to terminate my lease if I pursued my workers compensation claims. This caused me serious psychological issues.

2. The claim was supported by an initial workers compensation certificate of capacity. The certificate was issued following a consultation between the worker and his general practitioner on 30 December 2024. The worker was certified as having first become incapacitated in November 2023. The certifying practitioner recorded that the worker had stated the cause of his incapacity as follows:
   1. Physical injuries have prevented him from working and this has caused financial stress and has affected his family life.
   2. Feelings of harassment and threats from former employer have caused extreme stress.

1. The employer's primary position is that the Tribunal does not have jurisdiction to hear this referral because the claim is not a claim for compensation in respect of an injury for which the worker has not previously made a claim for compensation.
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. 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.
4. 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.
5. That the is 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.
6. In this case, the worker has conceded that a reasonably arguable case exists in relation to the dispute, if the claim is a claim for compensation under s 80A, and the Tribunal has jurisdiction to hear the s 81A referral.

1. The following is taken from a statement of evidence upon which the employer relies, which is authored by Dr I Byard who is a Director of the employer.
2. The worker worked as a farm labourer for the employer from about May 2021 until 12 May 2024 when the worker's position was made redundant.
3. Outside of the worker's employment with the employer, the worker leased a rental property with the employer between 27 June 2021 and 5 December 2023.
4. The worker has made a number of claims for compensation with the employer as follows:

(a) An injury to his thumb suffered in August 2021, the claim being made on 4 October 2021 (claim 1).

(b) A lower back injury suffered on 11 April 2023, the claim being made on 2 May 2023 (claim 2).

(c) An injury to his foot suffered in May 2023, the claim being made in May 2023 (claim 3).

(d) A right shoulder injury suffered on 25 September 2021, the claim being made on 2 September 2023, (claim 4).

(e) A right elbow injury suffered on 20 August 2023, the claim being made on 9 January 2024 (claim 5).

(f) A stress and anxiety injury which the worker says he suffered in November 2023, the claim being made 13 January 2025 (claim 6) which is the claim that is the subject of this referral.

1. The worker has recovered from the injuries that were the subject of claim 1 and claim 3.
2. The employer disputed liability for claim 4 in accordance with s 81A of the Act on 22 November 2023, and the Tribunal made a finding that there was a reasonably arguable case in relation to that referral.
3. The employer has disputed ongoing liability for claim 2 and claim 5, and terminated weekly payments in respect of those claims pursuant to s 86(1)(c) of the Act. The worker has disputed the termination of weekly payments for claim 2 and claim 3 and has referred those terminations to the Tribunal under s 86(4) of the Act. Those referrals are proceeding through the Tribunal's conciliation process.
4. On 14 November 2023 Dr Byard emailed the worker to inform him that his lease agreement for the rental property was ending soon, that it was intended to engage a property manager to manage the property if the worker intended to continue renting it. The worker responded to the email asking for a new employment contract but did not otherwise address the question of the lease agreement.
5. There were further exchanges in the next week or so regarding the lease of the property and the worker's employment.
6. On 22 November 2023 a process server attended at the rental property and served the worker with notice of the dispute regarding claim 4 under s 81A of the Act.
7. On 23 November 2023 the worker obtained a workers compensation medical certificate in relation to the back injury for claim 2. The certificate gave a diagnosis:

Shallow disc protrusion at L5/S1 causing impingement of the right S1 nerve root. He has now developed anxiety and stress related to his current work situation. The relationship with his employer has become fractured as a result of his injury and inability to work fully - this has caused him extreme stress.

8. A copy of the workers compensation medical certificate dated 23 November 2024 was attached to Dr Byard's statement.
9. Dr Byard indicated that he did not consider there was any significant event in November 2023 which would have fractured the employer's relationship with the worker, and that communications between himself and the worker about the lease agreement ending and the worker's request for a new employment contract were reasonable and amicable.
10. On 2 December 2023 Dr Byard emailed the worker to remind him that -
    • The lease agreement for the rental property was ending on 5 December 2023.
    • The lease agreement for the rental property was separate to his employment and other business arrangements in place between them.
    • He either end the lease agreement for the rental property and have 60 days to vacate or he signs a short term lease agreement.
11. On 3 December 2023 there was a decision made to attend the rental property as no response had been received from the worker and the lease agreement was about to end.
12. Dr Byard saw the worker in the backyard and spoke about the lease agreement for the rental property ending. The worker said that he needed to speak with his family before giving a decision. Dr Byard said the conversation was not confrontational, it was a cordial discussion and he believed both the worker and himself were respectful towards each other and understood each other's position.
13. Dr Byard considered the worker had had ample time since 14 November 2023 to make a decision about his accommodation arrangements, and Dr Byard decided to issue him with a notice to vacate. The worker was given 60 days to vacate the rental property, however the offer was made to negotiate a new lease agreement during the notice period. The worker was advised that there was going to be an increase in rental rates in the future.
14. Dr Byard denied that in November 2023 the employer blackmailed the worker, harassed him, and threatened to terminate his lease if he pursued his workers compensation claims.
15. It is the employer's position that the worker was personally served with the dispute documentation relating to claim 4 on 22 November 2023 which was the day before he informed his general practitioner that his relationship with the employer had become fractured. The employer says that the worker's alleged psychological problems in relation to claim 6 are in respect of and secondary to his physical injuries for which he made claims 2, 4 and 5.

1. The employer says that the only conclusion available, having regard to the information communicated by the worker in his claim documentation and to his certifying practitioner for the purposes of workers compensation medical certificates, is that the worker's psychological symptoms are secondary to one or more of his physical injuries, in relation to which he has made previous claims for compensation.
2. In particular, the employer says that the claim dated 13 January 2025 was a claim for the same injuries in respect of which claim 2 and claim 4 had been made. In support of that submission, the employer relies upon:
   • the workers compensation medical certificate dated 23 November 2023
   • the ongoing medical certificates from that point
   • the worker's description of the events giving rise to claim 6 in the claim form dated 9 January 2025
   • the initial workers compensation medical certificate dated 30 December 2024.
3. The worker says that the claim that is presently in dispute has been made on the basis that the worker says he suffered psychological injuries resulting from the employer going to his house, blackmailing him and threatening him. The worker says the reference in the claim form "After being two injuries at work. Relationship with employer got fractured" is contextual background only.

1. Where an issue is raised as to whether a claim for compensation is a 'claim for compensation' within the meaning of s 80A, the Tribunal must determine a question of fact concerning the nature of the claim that has been made by the worker against the employer, but not the validity of the claim: see Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134 (Thornton).
2. The decision in Thornton, and s 80A generally, were recently discussed by Brett J in State of Tasmania v Cane [2024] TASSC 56. His Honour cautioned against defining 'in respect of' in s 80A by use of the term "based for its foundation", as expressed in Thornton. His Honour confirmed at [32]:

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.

3. In the present instance, I think it is clear that the injury in respect of which the claim is made is a mental health injury which is alleged to have been caused by actions of the employer described as "came to my house and blackmailed me - threatening to terminate my lease if I pursued my workers compensation claims". It is 'this' that the worker identifies caused him "serious psychological issues".
4. Although the employer has emphasised the worker's reference in the claim form to "two injuries at work" and "relationship with employer got fractured" (which is the same wording as the wording in the continuing certificate dated 23 November 2023, delivered as part of claim 2), in the context of the claim form read as a whole, those references are provided more by way of background than identifying the injury for which the claim has been made.
5. 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.
6. The worker has conceded the existence of a reasonably arguable case to dispute liability for his claim, if the Tribunal does have jurisdiction. In the light of the employer's evidence outlined in Dr Byard's statement, that is an appropriate concession to make.

1. The employer submits that if I determine that the Tribunal has jurisdiction to hear the employer's s 81A referral, because the worker has conceded that there is a reasonably arguable case to dispute the claim, orders should be made in the usual terms under s 81A(3)(c) and (d) from the date the referral was listed for hearing.
2. The question of whether s 80A applied to the worker's claim is one that the employer raised. It is this issue that has needed to be determined. The usual orders will be made, and they will take effect from the date of this determination.

1. 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 15 January 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.