Roman Catholic Church Trust v Prosser - [2021] TASSC 55

[2021] TASSC 55

COURT: SUPREME COURT OF TASMANIA

CITATION: Roman Catholic Church Trust v Prosser [2021] TASSC 55

PARTIES:  ROMAN CATHOLIC CHURCH TRUST
  CORPORATION OF THE ARCHDIOCESE OF
  HOBART T/AS ST ANTHONY'S CATHOLIC SCHOOL
  v
  PROSSER, Vanessa Lee
FILE NO:  LCA 446/2021
JUDGMENT

APPEALED FROM: Roman Catholic Church Trust Corporation of the Archdiocese of Hobart t/as St Anthony's School v P
[2021] TASWRCT 5

DELIVERED ON:  9 November 2021
DELIVERED AT:  Hobart
HEARING DATE:  21 July 2021
JUDGMENT OF:  Geason J

CATCHWORDS:
Workers Compensation – Proceedings to obtain compensation – Determination of claims – Procedure – Procedure before hearing – Disputed liability for weekly payments and other benefits – Tribunal found reasonably arguable case did not exist – Tribunal not shown to be wrong.
Workers Rehabilitation and Compensation Act1988 (Tas), s 81A.

Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2, applied.
St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43; Tasmania v Rattigan [2021] TASSC 28; Dasreef Pty Limited v Hawchar [2011] HCA 21, 243 CLR 588, referred to.
Aust Dig Workers Compensation [340]

REPRESENTATION:

Counsel:
             Appellant:  M Wilkins
             Respondent:  P Zeeman
Solicitors:
             Appellant:  Page Seager
             Respondent:  Chris Hill Lawyers

Judgment Number: [2021] TASSC 55
Number of paragraphs: 33

Serial No 55/2021
File No LCA 446/2021

ROMAN CATHOLIC CHURCH TRUST CORPORATION OF THE ARCHDIOCESE OF HOBART T/AS ST ANTHONY'S CATHOLIC SCHOOL v
VANESSA LEE PROSSER

REASONS FOR JUDGMENT GEASON J

9 November 2021

The respondent made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 (the Act) for stress arising from a workplace incident.
The claim is supported by a medical certificate dated 23 September 2020.
The employer referred the matter to the Workers Rehabilitation and Compensation Tribunal under s 81A of the Act, disputing "liability to pay compensation by way of weekly payments for an injury".
That section engages the issue of causation at a simplistic level, posing for the tribunal's determination, the question "does a reasonably arguable case exist" concerning the liability of the employer to pay compensation by way of weekly payments; or the cost of any benefits payable under Division 2 of Part VI of the Act in respect of the injury to the worker: s 81A(2A). In respect of such referral the tribunal must:
(a)if it considers that weekly payments should be made, order the employer to make weekly payments from such date as the tribunal determines; or
(b)if it considers that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, order the employer to pay the cost of the benefits from such date as the tribunal determines; or
(c)if it considers that a reasonably arguable case exists concerning the liability of the employer to pay compensation by way of weekly payments, determine that compensation is not to be paid by the employer; or
(d)if it considers that a reasonably arguable case exists concerning the liability of the employer to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker, determine that the cost of the benefits is not to be paid by the employer.
Any such determination is a preliminary one, and not to be taken into account in other proceedings under the Act: s 81A(4).

The referral

The appellant's referral raised a number of grounds of dispute. As the Commissioner observed at [3] of her decision, "the bases of dispute effectively 'covered the field' in relation to compensable conditions under the Act".
The appellant's contention was that the worker had not suffered an injury (not being a disease) arising out of or in the course of her employment: s 25(1)(a); had not suffered an injury (being a disease) to which her employment had contributed to a substantial degree within the meaning of the Act: s 25(l)(b); and had not suffered a recurrence, aggravation, acceleration, exacerbation or a deterioration of any pre-existing injury or disease where her employment was the major or most significant contributing factor: extended definition of "injury" under s 3 of the Act.
The appellant relied exclusively upon an opinion contained in a report by Dr Prabal Kar, Consultant Psychiatrist, dated 7 December 2020. The upshot of the opinion was that the respondent's alcohol use, not her employment, was the cause of her condition.
The Commissioner concluded that the assumptions underpinning that opinion were not based upon a proper evidentiary foundation and therefore, "there would be no basis upon which they could be accepted in evidence at a final hearing in relation to the workers claim."
Accordingly the tribunal determined that a reasonably arguable case did not exist.

The proceedings in the tribunal

The respondent told the certifying general practitioner that her condition occurred in circumstances where she had a number of high-needs children and became extremely anxious as a result of a case conference, whereupon she "experienced involuntary tremor, heart-racing, nausea, excessive sweating, sudden onset of headache".
The evidence relied upon by the employer in support of the referral is contained in the report of Dr Prabal Kar. Dr Kar's opinion, including his record of the history, are set out in the tribunal's decision. I reproduce them:
"HISTORY OF PRESENTING COMPLAINTS
[The worker] said she had a high workload. She had increased work pressures. She had added work responsibilities in addition to her normal classroom teaching. She had assisted students with disabilities and she said she had felt under increased pressure as the end of the year had approached.
[The worker] said she had increased stress from one student with disabilities due to the behaviours of the student's mother, who appeared to her to be motivated to manipulate or present her child as more disabled than he really was.
[The worker] said the Department of Child Safety was involved. The matter had progressed to the Family Court. The mother was at times aggressive and short tempered.
[The worker] said at a meeting in mid-September 2020 she had felt shaken. It was during a meeting involving a number of school staff, with the parents of the child. [The worker] said the mother had been talking over her and was disrespectful.
[The worker] said she had felt very shaken as she was uncertain what the mother may do. She said the mother had reportedly become very angry at a psychologist's office in the past. She said the mother was suspected of Munchausen's syndrome by proxy which is a form of child abuse. She said this knowledge had also stressed her. [The worker] said there had been changes in the child's behaviour that had caused concern. [The worker] said initially she had not realised what was 'happening with my body'. She said she was trembling.
A week after a meeting she said she had received an email from the dietitian that the mother was wanting a feeding device to be put into the child, and had wanted [the worker] to document several times a day the child's eating behaviour and his levels of energy. [The worker] said she had felt overwhelmed and had seen the Principal. The Principal had said 'don't worry and leave it with me'.
[The worker] said she had felt unwell later. She was seen by her GP. She said her blood pressure was found to be high however she said she was not given any blood pressure medicines.
... in my opinion [the worker] has been adversely affected by her alcohol use. Her emotional symptoms occurred after her use of alcohol had increased."
At hearing the respondent contended that that report should not be received into evidence and if it was, it deserved little weight. The tribunal rejected the first submission:
"[4] When the s81A referral was heard, it was submitted on behalf of the worker that the report of Dr Kar should not be taken into evidence, but if it was accepted into evidence, the Tribunal ought to give it little weight, or little or no probative value. On that basis, counsel for the worker said the evidence did not enable the employer to meet the onus upon it to show that it had a reasonably arguable case to dispute the claim. It was submitted on behalf of the employer that the report ought properly to go into evidence and formed an appropriate basis to determine that the employer had indeed demonstrated it had a reasonably arguable case."
The Commissioner determined that the report was relevant to the bases of dispute raised by the employer at [18], and accepted the report into evidence. Thereupon tribunal identified its task as follows:
[5] ... The second question is whether the employer has demonstrated it has a reasonably arguable case to dispute its ongoing liability to pay compensation to the worker in relation to her claim. …"
As to that the Commissioner said "an employer s 81A referral does not require the tribunal to determine the weight that ought to be given to an independent medical report. The assessment I need to make is whether, taken at its highest, the evidence relied upon by the employer establishes that there exists a reasonable chance that the worker will be unable to discharge the onus of proof ..."

Section 81A

In Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 at [5]-[7], Brett J (at first instance) said of s 81A of the Act:
"[5] The scheme implemented by s 81A is that an employer who disputes liability in respect of a claim for compensation, must serve a notice of dispute on the worker, which informs the worker of the reasons for the dispute, and must then refer the matter to the Tribunal. The employer must do this within 84 days of receiving the claim. If this is not done within that time, the employer will be taken to have accepted liability in respect of the claim (s 81AB). Upon referral, the Tribunal must order the employer to make the specified payments unless it considers that 'a reasonably arguable case exists concerning the liability of the employer to pay compensation', in which case it shall determine that compensation is not to be paid by the employer. The Act therefore establishes 'a relatively speedy process for assessing whether an employer, who wishes to dispute liability to pay weekly compensation, has a reasonably arguable case in that regard ...' (per Crawford J (as he then was) in Walker v J and A Freeman Building Services [2006] TASSC 90, 16 Tas R 87). This process is consistent with the beneficial nature of the legislation.
[6] It is well established that the employer bears the onus of demonstrating the existence of a reasonably arguable case that compensation is not payable: Skill Group Limited v Anning [2015] TASSC 18, 23 Tas R 463; Lamont v M R V Supermarkets Pty Ltd [2016] TASSC 16, 24 Tas R 234. The section requires the employer to compile and deliver evidentiary material: s 81A(2)(b). The test to be applied by the Tribunal on the referral has been described in the following terms:
'a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.'
St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43.
[7] It is not sufficient for the employer to indicate that it simply wishes to put the worker to proof: Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38, per Pearce J at [5]."
A reasonably arguable case is one in respect of which it might be said that "there is a reasonable prospect of the claim being rejected following a final hearing." St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43 at [10].
For completeness I note that the case law was summarised more recently by Pearce J in Tasmania v Rattigan [2021] TASSC 28 at [3]:
"The relevant provisions of the Act have been summarised in many decisions including Walker v J & A Freeman Building Services [2006] TASSC 90, 16 Tas R 87, and more recently by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 at [5]- [7], and Blow CJ in State of Tasmania v Stirling [2021] TASSC 25 at [4]. What amounts to a 'reasonably arguable case' was considered by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90, 17 Tas R 43 at [10]. His Honour concluded that 'a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected'."
The employer is not required to establish that there is no liability under s 25 of the Act, "but only that there exists, on the evidentiary material the employer relies upon in the s 81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker by virtue of the Act, s 49(2)(a) on a final hearing of the worker's claim." Bradshaw v Tasmania Networks Pty Ltd (above) at [17].
The assessment required to be carried out by the tribunal must be carried out on the basis of the evidence available at the time of the referral: Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2 at [15], per Estcourt J with whom Martin AJ agreed.

Grounds of appeal

The grounds of appeal are:
"1That the Tribunal erred in law in failing to give any weight to the uncontested opinion of Dr Kar that the Respondent's condition was not related to her employment.
2That the Tribunal erred in law in requiring the Appellant establish what the cause of the Respondent's injury (which was a disease) was when the Appellant was only required to establish was that employment was not the major or most significant contributing factor.
3The Tribunal erred in law in that it failed to properly exercise its jurisdiction by requiring the Appellant to establish what the cause of the Respondent's condition was when it was required only to establish that the Respondent's condition did not have employment as its major or most significant contributing factor.
4That the Tribunal erred in law in failing to give Dr Kar's opinion as to causation any weight when it had no evidence to allow it to do so.
5That the Tribunal erred in law in failing to determine if the opinion of Dr Kar was accepted at a final hearing that the Appellant may establish that the Respondent's employment was not the major or most significant contributing factor to the injury (which is a disease) of the Respondent."
Grounds 1 and 4 are essentially the same; grounds 2 and 3, similarly overlap.

The opinion of Dr Kar

Dr Kar's opinion in relation to the causation relies related the respondent's condition to her heavy drinking. He said this, interpolating comments relating to the respondent.
"The new national guidelines for alcohol consumption produced by the Australian Government Department of Health and Aging, describes one glass of sparkling wine of 12% alcohol as equal to 1.4 standard drinks. Based on [the worker's] self-report of her alcohol use, she has been having 9.8 standard drinks a week since the middle of term two.
The CDC Fact Sheet ... writes- 'Heavy drinking is defined as consuming
- For women, 8 or more drinks per week.' [The worker's] use is higher than 8.
The CDC writes under the 'Long-Term Health Risks - Over time, excessive alcohol use can lead to the development of chronic diseases and other serious problems including: ' 'High blood pressure', 'Mental health problems, including depression and anxiety' 'Social problems, including lost productivity,' [The worker] has had such outcomes.
Alcohol affects persons differently. The Australian NHMRC guidelines write : 'To reduce the risk of harm from alcohol-related disease or injury for healthy men and women, drink no more than ten standard drinks per week and no more than four standard drinks in any one day.' These guidelines are for the healthy. As [The worker] has psychiatric symptoms and has occupational impairment she should avoid alcohol.
The NHMRC writes 'How much alcohol is safe to drink? 'Alcohol is never completely safe. The more you drink, the greater the risk to your health. ' The NHMRC requires considering each individual's case carefully. 'It's different for each person.' 'Long-term effects include: mental health issues. ' 'How alcohol affects you can depend on a range of factors, including your: gender, mental and physical health. ' The NHMRC also writes on the 'Social and financial problems', that alcohol could affect a persons [sic] work. [The worker's] work is affected.
The NHMRC National Health and Medical Research Council's 2009 Australian Guidelines to Reduce Health Risks from Alcohol writes, 'The revised Australian guidelines reduce health risks from drinking alcohol (2009) provide information for Australians on reducing risks to health from drinking alcohol. There is no level of drinking alcohol that can be guaranteed to be completely 'safe' or 'no risk'. Rather these guidelines set out advice on the level of drinking alcohol that will enable healthy adults to keep their risk of alcohol-related accidents, injuries, diseases and death low both in the short and long term. 'It refers to 'healthy' adults.
[The worker's] intake of alcohol is harmful. Several of the symptoms that she reports are consistent with the adverse effects of alcohol. The publication Comorbidity of Mental Disorders and Substance Use: A brief guide for the primary care clinician, Drug and Alcohol Services South Australia 2008, describes its adverse effects - 'The depressive effects of alcohol make it a significant risk factor in the development of mental health problems, particularly depression. Psychological presentations commonly associated with use (likely to resolve on cessation of substance use), depression and anxiety.
It is important to note that no amounts are specified above, as alcohol affects people differently. [The worker] has anxiety and mood symptoms which can be caused and aggravated by alcohol. Her symptoms are likely to resolve on cessation of alcohol use.
The textbook, Companion to Psychiatric Studies, 5th Edition by Kendell & Zealley, Chapter: Dependence on Alcohol and Other Drugs, writes 'Alcohol may contribute to a variety of presenting complaints. The sickness certificates of people eventually diagnosed as alcohol dependent reveal, for example, anxiety states, depression, ... ' 'The patients may not appreciate the contribution which alcohol makes to their presenting complaint ...'
The textbook, The Study Guide to the DSM-IV by Michael Fauman states on page 8, under General Criteria in DSM-IV, states on page 10, 'When a mental disorder due to a general medical condition or a substance induced disorder is responsible for the patient's symptoms, it precludes the diagnosis of any other mental disorder with similar symptoms'. As [the worker] has psychiatric symptoms from her alcohol use no other psychiatric condition like an Adjustment Disorder disorder caused by alleged stressors at work can be diagnosed.
[The worker] reports she herself feels surprised at how she feels affected by factors at her work. In my opinion, her uncharacteristic abnormal and excessive emotional responses to matters that she would have otherwise have been able to cope with before is not due to a work-related stress disorder. In my opinion she has become more fragile and unstable because of psychological harm caused by her alcohol intake. It has affected her coping.
While her alcohol intake is not extreme, the NHMRC writes it is different for each individual. Some individuals are more affected than others. The guidelines of the NHMRC on the number of drinks that a person can safely usually have in a week refers to healthy adults. As [the worker] has significant distress and significant impairment, she is not currently healthy. Health refers to mental and physical health.
[The worker] has been experiencing psychological symptoms and physical symptoms. She has lost productivity by being away from work for up to seven weeks. She has not yet regained her full normal work function. She was previously a high functioning teacher with long experience of work in the same school.
In my opinion her work-related stressors do not explain her current psychological symptoms. I believe her alcohol use is the major significant contributing factor to her current symptoms.
I have not made any specific alcohol related diagnosis in this case but I have pointed out using the scientific and published literature that her alcohol intake is risky and harmful. The CDC writes - 'However, there are some persons who should not drink any alcohol, including those who are' 'Suffering from a medical condition that may be worsened by alcohol. ' In my opinion [The worker] should have no alcohol as she has psychiatric symptoms which are caused and aggravated by alcohol.
The harm caused by alcohol can occur at different quantities in different individuals. [The worker] began taking more alcohol from about the middle of term two. In my opinion, her use of alcohol over some months has had harmful effects on her mood, coping and work.
Usually with a stress-related condition, on ceasing contact with the stressor or where the stressor is removed, for example, such as by leaving the workplace which [the worker} found stressful, there is usually rapid relief from the stress and a rapid return to normal function.
However even after [the worker] left the alleged stressors of her workplace, by ceasing work for up to seven weeks, she continues to feel affected even now. She said she does not feel better but she does not feel worse. This is because her condition is not related to work so removal has not helped. In my opinion her symptoms are related to her use of alcohol.
Based on the information that is available, I have been unable to make any other psychiatric diagnosis. I have found no evidence of a work-related psychiatric condition. Her current psychiatric impairment is in my opinion unrelated to her nominated workplace stressors."

At [14] of her reasons the Commissioner set out Dr Kar's answers to a number of specific questions raised by the appellant in its request for an opinion:
"c        What is your diagnosis or diagnoses of [the worker's] condition(s)
I have considered the diagnosis of an adjustment disorder. According to the DSM-IV, the diagnosis of an adjustment disorder would not apply. This is because she has had a harmful pattern of alcohol use. The symptoms that are caused by alcohol include anxiety, depression, gastritis, sleep disturbance, headaches, irritability and lost productivity. It causes transient increases of blood pressure, tremors and nausea.
The text book, The Study Guide to the DSM-IV by Michael Fauman states on page 8, under General Criteria in DSM-IV, states on page /0, 'When a mental disorder due to a general medical condition or a substance induced disorder is responsible for the patient's symptoms, it precludes the diagnosis of any other mental disorder with similar symptoms'. Adjustment disorders require the exclusion of any other factors. As [the worker] has psychiatric symptoms from her alcohol use no other psychiatric condition like an Adjustment Disorder disorder caused by alleged stressors at work can be diagnosed.
In my opinion, [the worker] is experiencing the harmful effects of her alcohol use. I have not been able to identify any other psychiatric condition or diagnosis. I have not found her to have an Adjustment Disorder.
d         What is your opinion as to the cause or causes of [the worker's] current condition(s)?
[The worker] was previously a high functioning teacher with many years of work experience at the same school. She herself feels perplexed by her symptoms. [The worker] reports from the second term of 2020 she has been having alcohol in a certain pattern, which was greater than her past pattern of alcohol use.
In my opinion her increased alcohol use over a period of several months has had adverse effects on mental health and her functioning.
I have not found [the worker] to have an adjustment disorder caused by her nominated work-related factors. She was feeling under some stress at work, but her work-related stressors do not explain her symptoms and disability, or her lack or improvement after she ceased work and was removed from her factors.
In my opinion the main cause of [the worker's] current symptoms and impairment is her harmful use of alcohol over several months.
e         In particular, were the events which took place between 16 September 2020, 23 September 2020 causative of [the worker's] current condition(s), and if so, were those events the major or most significant factor in the development of that condition?
The events of 16 September 2020 and 23 September 2020 had caused her stress, but do not explain her current symptoms or her current impairment. I do not consider the events of 16 September 2020 and 23 September 2020 as causative, or to be the major or the most significant factor in the development of her current symptoms, which due to her harmful use alcohol [sic].
f          Alternatively, are there other factors or events which have been the major or most significant factor in the development of [the worker's] condition? Please indicate to what extent those other factors are work related or non-work related?
In my opinion, the work-related events and factors had caused her some stress. Stress is not a psychiatric condition. In my opinion, without her harmful use of alcohol [the worker] would have likely coped better with her stressors at work.
At interview [the worker] said she was herself surprised at how she felt affected. She is an experienced teacher and was previously high functioning . The events she reported at work were not catastrophic. They were not of such significance or severity to cause the type, range and persistence of her claimed symptoms or the abnormal and excessive disability [the worker] has demonstrated.
Unlike work-related factors causing her symptoms, [the worker] did not feel significant improvement on leaving work. She said she did not feel any worse or better. In my opinion her symptoms and impairment are unrelated to work factors but she perceives work-related factors of having caused her symptoms.
Alcohol causes impact on work functioning. It causes lost productivity. It causes mood problems, irritability and coping difficulties as has been a feature of her history. [The worker] is experiencing symptoms and lost productivity.
g         To the extent that any other factors you identify in answer to question 3.1(/) are work-related, please indicate whether they arose due to the actions of the employer (and specify those actions)?
The factors that I have identified above are not work related. Her use of alcohol is unrelated to her work or the actions of her employer."
In reaching that conclusion, Dr Kar related the respondent's history to two different guidelines on alcohol consumption. This is the basis for the first criticism of Dr Kar's opinion. The respondent's contention is that Dr Kar applied information relating to the respondent's alcohol consumption first to the Australian guidelines published by the National Health and Medical Research Council (NHMRC) and assessed the results against US literature from the "Center for Disease Control" (CDC), using the latter to make a diagnosis of "heavy drinking". This with no apparent analysis of qualitative differences between the two standards or otherwise demonstrating that there was any proper basis for linking them. For example what constitutes a standard drink is different across the two publications: in Australia it is 100 ml of wine at an alcohol content of 13%, and in the US 5 oz or about 148ml at 12% alcohol.
The onus is upon the employer in a s 81A hearing. It is erroneous to think that merely because an opinion is received unchallenged, that the tribunal is required to accept that opinion, let alone determine that the employer has discharged that onus. It would be a derogation of the obligation vested in the tribunal to proceed as if that were enough. It is incumbent upon the tribunal to consider the opinion which is relied upon by the employer in accordance with principle. The correct approach in that regard was discussed in Dasreef (above). Whilst it would be inappropriate for the tribunal to dismiss an opinion capriciously, the notion that it may not critically evaluate the opinion is wrong. What is required is a sufficient analysis of the evidence for the purposes of determining whether there is a reasonable chance that the worker will be unable to discharge the onus of proof at hearing.
Having undertaken such analysis, and determined that there was no evidentiary basis for that which was opined by Dr Kar, it was inevitable that the tribunal would not proceed on the basis of that opinion. Contrary to the submission that the tribunal failed to consider the question of whether the appellant had raised a reasonably arguable case, the analysis undertaken by the Commissioner at [21]- [31] constituted the requisite critical evaluation for the purposes of determining whether there is a reasonable chance that the worker will be unable to discharge the onus of proof at hearing. It was the correct approach and led to the correct conclusion. Whilst the evidence of Dr Kar was uncontested by the parties, the analysis required of the tribunal exposed it as without foundation. That was an orthodox basis for rejecting the opinion: Dasreef Pty Limited v Hawchar [2011] HCA 21, 243 CLR 588.
That conclusion does not mean that the employer cannot make a case at hearing that the worker's condition does not arise out of or in the course of her employment. What it means is that for the purposes of determining whether weekly payments should continue until final hearing, the employer has failed to discharge the onus upon it.
It follows that in my view ground 1 is not made out. Ground 4 fails for the same reasons.
Ground 2 sets out a statement of principle. The "test" in a referral such as this, is whether "it is reasonably arguable on the material or identified deficiencies or weakness in the claim that, following a contested hearing the claim may be rejected": Bradshaw v Tasmania Networks Pty Ltd (above) per Porter J at [89]; or identifying in the evidence a plausible potential cause which is inconsistent with liability: St Helens Oysters Pty Ltd v Coatsworth (above) at [14]. Insofar as it is suggested that the tribunal required the appellant to establish the cause of the respondent's injury, I reject that submission. I do not think the Commissioner misstated the test, and the approach which was taken was in accordance with that test. The tribunal did not require the employer to demonstrate the cause of the injury. Even if it was arguable that Dr Kar did not suggest that alcohol consumption was the exclusive cause of the worker's condition, he opined that the main cause of the symptoms and impairment was the harmful use of alcohol over a period of months, not the employment. The appellant's case failed on an application of first principles: the tribunal rejected the opinion relied upon by the employer for its fundamental failure to identify a foundation for that opinion. That conclusion permitted of only one outcome on the s 81A hearing. I discern no error in the tribunal's approach. Grounds 2 and 3 must fail.
The appellant submits in ground 5 that the formulation of the test articulated by the tribunal at [43] was not correct. If it was correct it submits that the evidence of Dr Kar was such that if accepted it would provide the employer with a reasonable chance of enabling it to resist the worker's claim at final hearing. These contentions have been dealt with in relation to other grounds and I reject them. At the risk of further repletion, the nub of the Commissioner's conclusion appears at [42] where she says:
"[42] Because I do not consider there is a factual or evidentiary basis that supports Dr Kar's conclusions, I do not consider that the employer's evidence, as it stands, would have any reasonable chance of enabling the employer to resist the workers claim in a final hearing. It follows that it is in my view that the employer has not demonstrated that it has a reasonably arguable case to dispute the workers claim for compensation."
The learned Commissioner's approach is consistent with the test as set out elsewhere in these reasons by reference to the relevant authorities: Bradshaw v Tasmania Networks Pty Ltd per Estcourt J at [17] and per Porter J at [89].
Ground 5 is dismissed.
It follows that the appeal is dismissed.