A query is often raised by employers in circumstances where the diagnosis or description of the injury which is the subject of a claim for compensation changes at some point after the claim has initially been made. Often a worker’s description of their injury is significantly different to what is diagnosed by their treating medical practitioner, or specialists who are later called upon to assess the worker, and the description of the injury or condition can be different in subsequent medical certificates.
In Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41, the Supreme Court of Tasmania considered whether the scope of a worker’s claim was constrained by the description of the injury in the worker’s initial claim documents. Section 34 of the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act) provides that a claim for compensation is made for the purposes of the Act when a worker completes the approved claim form and gives it to the employer with an accompanying medical certificate in the approved form signed by a medical practitioner or an accredited person.
Facts
In Bradshaw, the worker made a claim for compensation in respect of an injury which was said to have occurred on 4 May 2018. The worker recorded in his claim form that he had suffered severe lower right back pain and pain through the right hip after driving a ‘battery reach fork’ at work. The Initial Workers Compensation Medical Certificate in the form approved by WorkCover Tasmania (IWCMC) accompanied the claim form and provided that the worker did not have any capacity for work.
Section 5 of the IWCMC requires the certifying medical practitioner to provide certain information in relation to the injury concerning its causation and when it occurred, the description given by the worker, whether the injury is consistent with the stated cause and whether there is any relevant past history.
In Bradshaw, the doctor who provided the IWCMC ticked the boxes in Section 5 which had the effect of certifying the following information:
“The above named worker stated the condition to be caused by … an incident which occurred on 4 May 2018.”
The doctor did not tick the alternative box which was worded:
“A disease, symptoms of which became evident on …”.
The doctor then ticked the box which indicated:
“If known the injury or disease is … a new condition”.
Conversely, the doctor did not tick the boxes which indicated:
“A recurrence of a previously compensable condition.”
“An aggravation of an existing condition.”
After making his claim, the worker was assessed by an independent neurosurgeon who diagnosed the worker with an aggravation of lumbar spondylosis. The neurosurgeon stated that the worker’s “employment has been a major contributing factor to the aggravation of lumbar spondylosis from which he now suffers” but that the worker did not suffer a specific work-related injury on 4 May 2018.
The employer subsequently disputed the claim relying solely on the evidence of the independent neurosurgeon, contending that it was reasonably arguable that the worker had not suffered a work-related injury, in the primary sense, on 4 May 2018 as detailed in the claim.
Initial Determination
At first instance in the Workers Rehabilitation and Compensation Tribunal, the Commissioner agreed that the employer had a reasonably arguable case. The Commissioner found that while it was incontrovertible even on the independent neurosurgeon’s evidence that there may well have been an underlying condition to which the worker’s employment had contributed over many years “the claim itself is for an… injury… occurring on the 4th of May 2018 and similarly the initial workers compensation medical certificate supporting that claim refers to an incident on the same date“.
Appeal
The worker appealed the Commissioner’s decision to the Supreme Court based on a number of grounds.
In considering the appeal, Justice Brett noted that the authorities in Tasmania had established that there are three pathways to liability arising from section 25(1) of the Act, these being where a 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“1;
- a disease to which his or her employment contributed to a substantial degree, that is, only if it is the major or most significant factor; or
- an aggravation of a pre-existing injury or disease, but only where the employment was the major or most significant contributing factor to that aggravation.
The employer contended that the worker’s claim form and IWCMC confined the claim as an injury in the primary sense, and that the claim did not relate to an injury being an aggravation of a pre-existing disease. The employer’s evidence for that argument was that in the IWCMC, the doctor recorded the worker as suffering from a frank injury and not ticking the alternative boxes worded “a disease, symptoms of which became evident on …” or “an aggravation of an existing condition”.
The employer submitted that it would unfair and contrary to the Act to require an employer to deal with an injury of a different nature and under a different “pathway” when such an alternative claim was not within the certification contained in the medical certificate.
Justice Brett held that while it is clear that the claim must identify the injury which is said to give rise to the liability to pay compensation, the only requirement for that liability is that the identified injury falls within the ambit of s25 of the Act. His Honour’s reasoning was that there is “nothing in the Act which requires the worker, in the claim, to identify the pathway under s25 which will make the injury in question compensable. Such a requirement would be contrary to the beneficial nature and scheme of the Act. What is required is that the employer have sufficient information from the claim to be able to identify, as a matter of fact, the injury which is asserted to give rise to the liability to pay compensation.”
In relation to the workers compensation claim form, Brett J held that it was not necessary for a worker to identify the precise basis of liability under s25(1) of the Act:
“The approved form does not require this level of detail. In fact, the wording of the form directs the worker’s attention only to the circumstances in which the existence of the injury became known to the worker. In my view, this requirement for general specification of the circumstances of the relevant injury is sufficient to place the employer on notice as to the injury for which compensation is claimed, and complies with the requirements of the legislation.”
In making this finding, Justice Brett recalled the comment made by Justice Underwood (as he then was) in State of Tasmania v Beadle [2001] TASSC 122 that the Act “does not require either the notice of injury or the claim for compensation to describe in precise terms the injury suffered“, where in turn Justice Underwood referred to the seminal observation made by Justice Wright in Wilkins v St Giles Society A80/1995 that the giving of notice of an injury “need not be stated with the precision of a medical diagnosis but, on the other hand, the essential kind, quality or characteristic of the injury must be disclosed. It will suffice to describe the injury in terms of manifest symptoms so long as the precipitating event is also identified“.
Justice Brett noted however, that in State of Tasmania v Beadle, Justice Underwood did confirm that the claim for compensation must be in relation to an identified injury so as to give rise to a liability under the Act.
Justice Brett also rejected the argument that the claim is defined and constrained by the medical certificate, finding that although the medical certificate certifying incapacity is an essential prerequisite to the liability to make weekly payments, that document does not constitute the claim or constrain its ambit. The Act does not require certification as to causation in the medical certificate and it does not confer any other role on the medical certificate in defining or constraining the claim.
Ultimately, however, Justice Brett held that although the Commissioner erred in law in her reasons for finding that there was a reasonably arguable case, if she correctly determined and applied the law, she would inevitably have reached the same conclusion. In those circumstances, the appeal was dismissed.
Take Away Tip
Employers assessing the description of an injury in a worker’s claim should bear in mind that all that is required is that the employer is given sufficient information to be able to identify, as a matter of fact, the injury which is asserted to give rise to the liability to pay compensation.
The Act does not require the worker to identify the specific pathway under section 25 of the Act which will make the injury compensable, so employers wishing to dispute claims on “causation” grounds under s25 should consider disputing on alternative grounds where those alternatives are supported by the evidence.
This article was written by Luke Taylor, Partner and Michael Klapsis, Solicitor.
1 See Military Rehabilitation and Compensation Commission v May [2016] HCA 19, 257 CLR 468.
