Tasmanian Tribunal confirms its power to order workers to attend non-medical assessments

20 May 2020

Facts

In Elders Ltd v L. [2020] TASWRCT 10 the worker had made a claim for compensation for an injury he suffered to his left shoulder and left side of his neck as a result of braking heavily in the course of his employment as a delivery driver.

By a referral to the Tribunal, the employer sought a review of the worker’s weekly payment under s.88 of the Act, and then proceeded with terminating the weekly payment under s.86(1)(c) of the Act. The worker referred the termination of his weekly payment to the Tribunal and shortly afterwards, also referred a dispute over the employer’s refusal to pay the cost of medical and associated expenses claimed by the worker.

Direction sought by employer

In the course of the Tribunal proceedings, the employer made an application to the Tribunal seeking a direction that the worker attend a vocational assessment with a vocational assessor, Ross Blandford. The employer submitted that by virtue of s.49 of the Act, the Tribunal had the power to direct the worker to attend the appointment with the vocational assessor.

Section 49 of the Act makes provision for the procedure of the Tribunal, and as commonly seen with statutory tribunals, it provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit, and any proceeding before it “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit“.

The worker submitted that there is no specific power in the Act which permits the Tribunal to order a party to attend a non-medical appointment, such as vocational assessment. The worker submitted that s.90A of the Act dealt with the circumstances in which a worker could be required to submit to an independent medical review, and this provision did not apply in the circumstances given that Mr Blandford was not a medical practitioner.

The worker further submitted that s.49 of the Act only deals with procedural matters, and does not afford the Tribunal the power to order that a worker attend a vocational assessment. The worker stated that evidence of the nature sought by the employer could be provided on an examination by an occupational physician who was a medical practitioner, which would therefore engage s.90A of the Act.

Tribunal’s decision

Chief Commissioner Clues firstly considered the relevant issue raised by the referrals before the Tribunal, namely the worker’s capacity for work. Specifically, Chief Commissioner Clues noted that the issues of the availability of the type of employment the worker might be fit to perform in the current labour market, and the amount of income he may be able to earn from that employment were relevant, and this was not the type of evidence that could be provided by a medical practitioner, but rather a vocational assessor.

Chief Commissioner Clues noted that “expert witnesses including occupational/vocational assessors play an important role in assisting the Tribunal to fulfil its statutory obligations to assess the consequences of work caused injuries.

Discussing s.49 and the “considerable latitude” that it provides to a Commissioner in determining the proceedings before him or her, Chief Commissioner Clues noted that the relevant Supreme Court authorities concerning ss.49(1) always confirmed that the basic rules of procedural fairness should be adhered to in Tribunal proceedings.

The Chief Commissioner concluded accordingly that although the rules of evidence are not binding on the Tribunal, it must act on evidence put before it. The Tribunal is required to find the facts, determine the applicable law and then apply the law to the facts. It followed that evidence from expert witnesses played an important role in assisting the Tribunal to perform its functions, and if the Tribunal considered a vocational assessment would assist in determining issues in dispute and would also afford procedural fairness, then Chief Commissioner Clues concluded that the Tribunal did have power under s.49 of the Act to make such an order.

While Chief Commissioner Clues found that power to exist in s.49, she then went on to consider whether s.60(1A)(c) [sic]1 of the Act afforded a similar power to give such a direction “where the Tribunal is otherwise satisfied that the interests of justice require it“. She found that such a power did exist to order that a worker attend a specific expert or vocational assessment provided that the interests of justice in the case require it.

Accordingly, the Tribunal ordered that the worker attend the vocational assessment with Mr Blandford and the employer pay all reasonable travel expenses associated with attending that appointment.

Take away tip

There is often dispute in proceedings before the Tribunal as to the employer’s capacity to have the worker attend an assessment with a non-medical expert, such as for a vocational assessment. This decision confirms the employer’s ability to do so where the evidence from the non-medical witness:

  • is relevant to the issues in dispute;
  • will assist the Tribunal in determining those issues; and
  • will afford procedural fairness between the parties.

It is not stated in the Tribunal’s decision, but the inference is that before applying for directions from the Tribunal, the employer in Elders Ltd v L. had first requested that the worker attend the assessment, and that request was refused. Given the matters referred to by Chief Commissioner Clues in the decision, it may be prudent for employers and insurers to seek legal advice on how such requests should be formulated.

This article was written by Luke Taylor, Partner and Daniella Phillips, Solicitor.


1 The written decision accessible on the Austlii website repeatedly refers to “s.60(1A)(c)”, but the authors respectfully observe this should be a reference to s.60A(1A)(c) of the Act.

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