The decisions — S v Mondelez Australia Pty Ltd  TASCAT 139 (‘Mondelez‘) and W v Mosaic Support Services (No 2)  TASCAT 153 (‘Mosaic‘) — address the persuasiveness of expert evidence in relation to ss 86(1)(c) or 88(2)(a). Both subsections place the onus of proof upon the employer. Employers must therefore produce persuasive evidence to support weekly payments being reduced or terminated if they are to be successful.
Under s 86(1)(c) an employer may terminate or reduce weekly payments if they establish, by reference to the certified opinion of a medical practitioner, that:
- the worker has wholly or substantially recovered from the effects of the injury in respect of which they receive weekly payments; or
- the worker’s incapacity is no longer due, wholly or substantially, to that injury.
The Tribunal found, in both Mondelez and Mosaic, that the employer did not lawfully terminate weekly
payments under s 86(1)(c).
In Mondelez the employer relied on a report from Dr Phil Allen (orthopaedic surgeon) who had concluded that the worker’s incapacity was not caused by her right hip injury at work, but by pre-existing osteoarthritis he said was now affecting both hips. However, Dr Allen’s evidence failed to explain why, if that was the case, the worker only had symptoms in her right hip, and did not have symptoms in both hips.
In Mosaic the employer relied on reports from Dr Ashish Jonathan (neurosurgeon) and Dr Alison Drewry (occupational physician) who had similarly reported that pre-existing lumbar spine degeneration was the cause of the worker’s incapacity, rather than the incident that had occurred at work. In doing so reliance was placed on generalised assertions and treatment guidelines. Both experts said that any ‘exacerbation’ caused by the injury would only have lasted a few weeks. Dr Drewry also concluded that the worker had wholly or substantially recovered from the effects of the injury and asserted that he remained incapacitated due to opioid dependence.
Deputy President Clues was not persuaded by the ‘speculative’ assertions and incomplete reasoning of the medical experts relied upon by the employers in these cases. She observed that reliance on general guidelines for recovery is irrelevant, as recovery is unique to each individual. In both cases the worker had developed symptoms (or a worsening of symptoms) in association with an incident at work, and had continued to have symptoms since, with no evidence of an intervening event breaking the chain of causation.
These decisions highlight the difficulties that employers and insurers will face when relying on opinions of the kinds expressed by Dr Allen, Dr Jonathan and Dr Drewry in Mosaic and Mondelez to support a termination of payments to a worker. An opinion that a worker with ongoing symptoms ‘should’ or ‘would’ have recovered after a particular period of time will not be sufficient to persuade the Tribunal that a termination of payments is justified.
It is crucial that experts set out the facts upon which they have relied and their process of reasoning towards their conclusion and avoid basing their opinions on speculative or irrelevant factors. If not, in light of the decisions in Mondelez and Mosaic, workers are likely to approach disputes in TASCAT with confidence that the Tribunal will find in their favour if they proceed to a hearing, and be less likely to make concessions on their claims for settlement purposes.
Mosaic also provides an example of the way that TASCAT will determine a s 88 referral in which an employer seeks a review of the weekly payments being paid to a worker. In that case the employer relied upon Dr Drewry — who reported fitness for employment notwithstanding the worker’s ongoing incapacity — and a report from a vocational assessor. Deputy President Clues afforded the vocational assessor’s evidence no weight, as her opinion was formed on the basis of the worker’s ‘theoretical’ capacity for work instead of the worker’s actual ability to earn income in suitable employment or business. The s 88 referral was dismissed, which reinforces the need for vocational evidence to be more than aspirational or theoretical in nature and to instead demonstrate real capacity to earn wages in the labour market.
Mondelez and Mosaic serve as a timely reminder to carefully consider not just the conclusions, but the reasoning of expert medical and vocational evidence that is to be relied upon in support of a termination, reduction or review of weekly payments of compensation. Further, in the wake of these decisions, employers and insurers must take the strength of such expert evidence into account in the management and strategy for dealing with workers compensation claims.
If you have any questions about these cases or the issues raised in this article, please feel free to contact our insurance litigation team.