Mosaic was an appeal from a decision of the Tasmanian Civil and Administrative Tribunal (TASCAT) who had held that an employer’s termination of weekly payments of compensation under the Act had been unlawful and dismissed an application for a review of the weekly payments being received by the worker under s88 of the Act.

The employer was unsuccessful in its appeal, and the judgment of Marshall AJ highlights some foundational principles that are worth being reminded of:

• In cases where the employer claims that a worker’s incapacity is no longer wholly or substantially due to their work injury TASCAT identified the correct test when it said:

“In order to satisfy its onus of proof, an employer must establish that notwithstanding the fact that the worker suffered the injury that caused an incapacity to work, the stage had been reached, as at the date the certificate was signed, that the pre-existing degenerative changes in his lumbosacral spine would have, in any event, become symptomatic to the extent of producing his current capacity for work”.

• In cases where a reduction of a worker’s entitlement to weekly payments is sought pursuant to s88 of the Act an employer must first establish that the worker has partial incapacity for work as distinct from total incapacity. If partial incapacity is established, the employer is required to establish the amount that the worker would have been able to earn in suitable employment.
  
• In cases where there is conflicting medical evidence (as there was in Mosaic), factors which might influence a Tribunal to prefer a particular expert’s medical evidence over that of a conflicting expert can legitimately include:
  • Whether the expert kept notes or records of their assessment with the worker.
  • Whether the expert physical examined or treated the worker, or merely conducted their assessment via videoconference.
  • Concessions made by an expert during cross-examination (or a lack of appropriate concessions being made).
  • That treating doctors may have more dealings with a worker over a longer period of time, giving them greater insight into the worker’s condition.
  • A lack of evidence to support alternative causes of incapacity where that is proposed by an expert (e.g., opioid dependency was proposed as a major factor by one of the employer’s experts in Mosaic but that claim was not supported by any additional evidence).