Summary

Below is a review of the recent determinations by TASCAT on workers compensation matters in March and April 2025. The main takeaways are:

• TASCAT will approve an application for summons where the documents sought have apparent relevance to the issues in dispute;
• Employers are not required to provide notice to workers when terminating weekly payments under s86(1)(a) and (b).
• ‘Serious and wilful misconduct’ under s25(2)(a)(i) requires that the action: causes an immediate risk of serious injury; was deliberate and not thoughtless; and was accompanied by an appreciation of risk.
• The apparent temporal connection is a pertinent consideration for determining whether a reasonably arguable case exists where workers make a claim following an employer’s reasonable administrative action.
• TASCAT has powers to determine if separate referrals ought to be heard and determine separately, and TASCAT will exercise it where the referrals are about different issues.
• Where employers intend to rely on the exceptions to liability under s25(1A)(b) and (c), their evidence must outline that the actions were taken in a reasonable manner.

Our insurance litigation team are available and competent to advice on matters or issues alike to the recent determinations by TASCAT that are summarised in this article.

KC v Devonfield Enterprises Inc [2025] TASCAT 65 (10 April 2025)

The main issue addressed in this determination by Deputy President Grueber relates to the test for determining an application for summons. Essentially, the test is whether the documents that is the subject of the summons have apparent relevance to the issues in dispute between the parties.

Our key tip:

Ensure that the application for summons is not akin to a fishing expedition. The application need only demonstrate that the documents sought after are likely relevant to the dispute.

Metro Tasmania Pty Ltd v KX [2025] TASCAT 62 (3 April 2025)

Here, the employer sought to rely on the exception to liability under s25(2)(a)(i) regarding serious and wilful misconduct of the worker in a s81A Hearing.

Senior Member Chandler said that the test for serious and wilful misconduct is that the action (citing Hill v Brambles Holdings Ltd [1987] TASSC 31:

1. Must give rise to an immediate risk of serious injury; and
2. Is deliberate and not a thoughtless act; and
3. Must be accompanied by an appreciation of risk.

Senior Member Chandler determined that TASCAT cannot assess the worker’s state of mind and appreciation of risk at a s81A Hearing.

Our key tip:

Actions of workers that are careless leading to an injury may not necessarily amount to serious and wilful misconduct. The test requires that the worker intentionally performs an act which led to the serious injury.

The State of Tasmania (Department of Health) v KND [2025] TASCAT 58 (31 March 2025)

Here, the worker had made a workers compensation claim subsequent to attending a meeting with her supervisor. The employer argued that the meeting amounted to a reasonable administrative action which had been done in a reasonable manner.

Senior Member Chandler determined that the ‘apparent temporal connection’ between the final catch-up between the worker and her supervisor is a pertinent consideration for the s81A referral.

Our key tip:

It is important to identify the date of injury and/or initial incapacity when assessing whether there is a close temporal connection between the injury and employer’s administrative action.

NN v The State of Tasmania (Department of Health) [2025] TASCAT 57 (31 March 2025)

Here, the worker filed a s42 referral and the employer filed a s88 referral. The worker sought determinations about the date that his weekly compensation rate ought to have been calculated and the appropriate rate that it ought to be made. The employer sought determinations on the worker’s capacity for work and a reduction of the weekly payment rate.

Senior Member Jack stated that s85(1)(b) of the Tasmanian Civil and Administrative Tribunal Act 2020 empowers TASCAT to determine whether separate referrals ought to be heard and determined separately. She determined that separate referrals need not be heard together where they require a determination about different issues.

The State of Tasmania (Department of Police, Fire and Emergency Management) v DKN [2025] TASCAT 44 (6 March 2025)

The worker’s claim relates to a psychological injury arising from the employer overlooking her for a senior role. The employer argued that there were reasonable grounds to not award the promotion to the worker, and that the decision amounted to a reasonable administrative action.

Senior Member Chandler determined that the employer’s evidence was insufficient to demonstrate that there were reasonable grounds to not award the promotion and that the administrative action was taken in a reasonable manner. Accordingly, the employer’s s81A referral was dismissed.

Our key tip:

The exceptions to liability under s25(1A) require evidence to support that the employer’s actions were based on reasonable grounds / taken in a reasonable manner.