The issue was whether an employer should be given full access to pre-injury medical records produced under a summons, or whether access should be restricted where a worker objects to certain documents on the basis that they are not relevant to the claim.

Background

In this case, the worker issued a summons to two medical practices they had attended. The medical records were provided to the Tribunal and reviewed by the worker, who objected to parts of the records being released to the employer. The worker argued that some documents were not relevant because they did not relate to the specific injury for which compensation was being claimed.

The Tribunal’s decision

The Tribunal confirmed that the test for relevance is a low threshold. Documents will generally be open to inspection where they have an “apparent relevance”, meaning they may reasonably “throw light” on an issue in dispute.

An objection based on relevance will not succeed if there is a reasonable basis to think that the documents:

• could be used as evidence, or
• may be put to a witness in cross‑examination,

and could affect the outcome of the proceedings in a way that is not fanciful or speculative.

In this case, the worker’s claim involved a degenerative condition. The Tribunal found there was a real possibility that the medical records sought could assist in understanding the issues in dispute and may be relevant to how the claim should be resolved. Because the documents might reasonably be used in cross‑examination, they were considered to be apparently relevant.  The Tribunal accepted that there was a possibility that the documents returned may ultimately not turn out to be relevant, but this did not preclude the employer from inspecting them.

As a result, the Tribunal allowed the employer to inspect the pre-injury records without restriction.

Key implications

• This case suggests that in the context of workers compensation disputes TASCAT will generally allow access to prior medical history where the documents may assist in determining the issues in dispute or could reasonably be used in cross‑examination.

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The Tasmanian Civil and Administrative Tribunal has clarified how section 86(1)(b) of the Workers Rehabilitation and Compensation Act 1988 operates. The case involved a worker whose weekly payments were permanently terminated after earning above their compensation rate for several weeks while on suitable duties.

In the past, a common approach to s86(1)(b) was that once a worker earned above their weekly compensation rate, weekly payments could be permanently ceased. To resume payments, the worker typically had to lodge a section 42 referral and prove ongoing entitlement before the Tribunal.

However, in this case the Tribunal held that section 86(1)(b) only allows an employer to reduce or stop weekly payments for the period in which the worker’s earnings exceed the weekly payment figure. It does not permit a permanent termination. If the worker’s earnings later fall below that figure and medical certification continues, weekly payments must resume without a new claim or referral.

The Tribunal ordered reinstatement of weekly payments from the date they were ceased.

Key implications:

• Weekly payments fluctuate with earnings. A temporary increase in earnings affects that week only.
• Employers cannot rely on section 86(1)(b) to permanently end weekly payments.
• If employers wish to terminate a worker’s entitlement to weekly payments they will need to use section 86(1)(c) or seek a review under section 88.
• Cases in which s86(1)(b) has been relied upon to terminate a worker’s entitlement to weekly payments of compensation will need to be reviewed.

The post Recent Tribunal Decision on Section 86(1)(b) appeared first on Dobson Mitchell Allport.

Key Takeaways

• The Tribunal reaffirmed the conventional legal test for interim orders: applicants must show a serious question to be tried and that the balance of convenience favours granting the order.
• Evidence of financial hardship is not strictly required, but it remains a central consideration in assessing the balance of convenience. In this case, the worker did not allege hardship or provide sufficient financial details, which weighed against her application.
• The Tribunal rejected arguments for a simplified “interests of justice” test, confirming that the conventional approach aligns with both the legislative framework and broader legal principles governing interim relief.

Why This Matters

This ruling provides clarity for employers, insurers and workers in the context of applications for interim orders pursuant to section 60A. It confirms that the Tribunal will continue to apply the conventional approach that it has done for more than 20 years.

The post TASCAT Decision Clarifies Legal Test for Interim Compensation Orders appeared first on Dobson Mitchell Allport.

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.

The post Workers Compensation Updates from recent TASCAT determinations appeared first on Dobson Mitchell Allport.

The decision concerned an application by an employer under s 88 of the Tasmanian workers compensation legislation for weekly payments of workers compensation to be suspended for the duration of the worker’s entitlement to Commonwealth parental leave payments. The employer’s argument was that, had the work-related injury not occurred, the worker would have foregone her usual wages and relied upon parental leave payments while on parental leave.

The Tribunal dismissed the employer’s referral. In doing so Deputy President Grueber determined that parental leave payments are not ‘earnings’ for the purposes of the workers compensation legislation but are instead a benefit that, pursuant to s 98 of the Commonwealth legislation, should not be taken into account for the purposes of state workers compensation legislation. The Tribunal also accepted that pregnancy and childbirth are a supervening event that is irrelevant to a worker’s entitlement to workers compensation.

The decision confirms that workers compensation payments must continue in accordance with a worker’s medical certification if a worker takes parental leave and receives Commonwealth parental leave payments. We recommend obtaining legal advice if you are uncertain about entitlements to weekly workers compensation payments.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

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In the context of weekly payments, employers should be aware of the definition of ‘claim for compensation’ as stated in s 80A of the Act:

… a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer.

The operation of s 80A means it is important for employers and insurers to identify whether a claim made by a worker is a stand-alone claim, or whether it actually falls within the scope of a claim that has already been made.

To determine this, the question is whether the claim as made is ‘based for its foundation’ on the subject injury and/or event of a prior claim. As a fairly clear-cut example, if a worker suffers a physical injury and later claims compensation for psychological symptoms arising from pain or loss of function, the subsequent claim is ‘based for its foundation’ on the physical injury claim. The circumstances are often much more ambiguous than this.

A key consequence of a claim not being a ‘claim for compensation’ under s 80A is that an employer cannot utilise s 81A(1) to dispute liability for that claim. In those circumstances, the subsequently claimed incapacity and medical expenses are managed as part of the prior claim.

We recommend obtaining legal advice if you have received a workers compensation claim in respect of a work-related injury for which you think a claim has already been made.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

The post WORKERS COMPENSATION — WHEN IS A NEW CLAIM NOT A ‘NEW CLAIM’? appeared first on Dobson Mitchell Allport.

The decision was in relation to an appeal of a determination by the Tasmanian Civil and Administrative Tribunal that an employer was not liable to resume making weekly payments in those circumstances.

Blow CJ allowed the appeal, finding that the employer became liable to make weekly payments of compensation to the worker from the time it received the medical certificate.

His Honour considered that it would be contrary to the legislative intention in the Act to interpret the legislation, as beneficial legislation, as allowing the employer to avoid making weekly payments for up to 84 days from the date of the delivery of the medical certificate following the gap.

In making his decision Blow CJ indicated that he agreed with an observation that had been made by the Tribunal that s81 of the Act (which limits the extent to which an employer has to back pay a worker when a claim for compensation is made) is not applicable in these circumstances. This leaves open a potentially significant question about what happens in a case where a worker presents a back dated medical certificate following a gap certification (particularly where the gap is a long one).  It is likely that this issue will require consideration in future cases.

Please feel free to contact our insurance litigation team should you have any questions about the impact of this decision.

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Working at Dobson Mitchell Allport has given me an extremely encouraging environment to put the knowledge I gain at law school to practical use. From refining my legal research skills to drafting advice for clients and engaging in business development, Dobson Mitchell Allport does it all! In addition to the experience, I get to work with a team that is incredibly nurturing, and always take the time to answer any questions I have, no matter how basic they are. I also have ample opportunity to seek feedback, which will only (hopefully) make me a better lawyer.

We also give back to the community, which I find important in setting a positive workplace culture. With initiatives to donate to organisations like Dress for Success and the Red Cross, DMA really values its place in the community, and in turn value their employees. I would recommend working here to anyone and everyone, it has been an incredible start to my legal career in Australia.

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a.       the expiry of the applicable period in section 69B (1) of the Act, which is a minimum of nine years from the date of initial incapacity; or

b.       by virtue of section 87 of the Act, the date upon which the worker attains the pension age as set by the Social Security Act 1991 (Cth).

The entitlement to weekly compensation ceases at pension age because the Act assumes that a worker would have retired at that time regardless of their work-related injury. Exceptions to this include where a worker is injured less than two years before attaining the pension age and where a worker applies for, and the Tribunal makes, an order extending the entitlement on the basis that the worker intended and was permitted to continue their employment beyond the pension age.

Since 1 January 2018, section 87 as amended has contained an irregularity — a worker’s entitlement to weekly payments no longer ceases at a set time where a work-related injury occurs after the worker attains the pension age.

In those circumstances, where appropriate, the onus is on the employer to bring about the end of a worker’s entitlement to receive weekly compensation. Options to do so include filing a referral under sections 69(8) or 88 of the Act where the worker had retirement plans in place prior to their injury or filing a general referral under section 42 of the Act.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

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The WorkCover Tasmania Board has recently released a new workers compensation claim form and workers compensation medical certificate for use in Tasmania. The new forms can be printed or completed digitally.

In developing the new forms, consultation was had with insurers, medical practitioners, rehabilitation providers, lawyers, workers, unions, employers and the Tasmanian Civil and Administrative Tribunal.  This was to ensure that the forms captured all relevant information required to assist with the workers compensation claim process, with a focus on a worker’s capacity, rather than their incapacity.

Claim Form

Although the form is longer than its predecessor, it has been simplified, making it easier for injured workers and employers to complete.  The aim of the new certificate is to ensure all relevant information is obtained from the outset, so that a claim can be managed without delay.

An important change is that the form allows for workers to elect to receive certain documents relating to their claim via email communication.  Previously an employer or insurer would arrange for certain documents to be served personally, which in addition to being costly, would often cause additional stress on the injured worker.

The new claim form can be accessed below.

New workers compensation claim forms for Tasmania (worksafe.tas.gov.au)

Medical Certificate

Previously, there were two medical certificates: an initial certificate; and a continuing certificate.  This has now been simplified into one certificate, with an option to specify wither it is an initial or continuing certificate.  The updated certificate is also longer than its predecessor.  The questions asked of an injured worker’s medical practitioner have been modified to ensure that employers and insurers obtain clear information relating to the worker’s need for treatment and their capacity for work including return to work restrictions.

The focus is now on what a worker can do rather than what they cannot.

A copy of the new certificate can be accessed below.

Workers Compensation Certificate of Capacity (medical certificate) (worksafe.tas.gov.au)

For any enquiries relating to the worker’s compensation process, including disputes, please contact our insurance litigation division.

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