State of Tasmania v Cane
[2024] TASSC 56
•5 November 2024
[2024] TASSC 56
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | State of Tasmania v Cane [2024] TASSC 56 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| CANE, Andrew Peter | |
| FILE NO: | 2780/2023 |
| DELIVERED ON: | 5 November 2024 |
| DELIVERED AT: | HOBART |
| HEARING DATE: | 12 March 2024 |
| JUDGMENT OF: | BRETT J |
| CATCHWORDS: |
Workers' compensation – Proceedings to obtain compensation – Determination of claims – Jurisdiction of courts, tribunals and boards – Grounds raise questions of law – Whether requisite causal link between psychological injury and physical injury is established – Causal link falls within ambit of "in respect of" – Tribunal correctly concluded worker's claim for incapacity from psychological symptoms was in respect of physical injury.
Aust Dig Workers’ Compensation [305]
Cases:
GL and VN Barber Pty Ltd v Ryan [1999] 8 Tas R 308
Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354
State of Tasmania v Parsons [2002] TASSC 59
Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134
Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165CLR
642
Legislation:
Rehabilitation and Compensation Amendment Act 2000
Tasmanian Civil and Administrative Tribunal Act 2020, s136(1)
Workers Rehabilitation and Compensation Act 1988, s80A, s81A, s25(1A), s25 (1), s69(1), s69(13)
REPRESENTATION:
Counsel:
Appellant: L Taylor Respondent: B Hilliard
Solicitors:
Appellant: State Litigation Office
| Respondent: Judgment Number: Number of paragraphs: | Tasmanian Compensation Lawyers |
| [2024] TASSC 56 | |
| 40 |
Serial No 56/2024 File No 2780/2023
STATE OF TASMANIA v ANDREW PETER CANE
| REASONS FOR JUDGMENT | BRETT J 5 November 2024 |
1 This appeal from the Tasmanian Civil and Administrative Tribunal (the Tribunal) is primarily concerned with the operation and application of s 80A of the Workers Rehabilitation and Compensation Act 1988 (the Act). That section is the first provision in Part VII, Div 1. It provides that for the purposes of that Division, "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". In this case, the respondent served the appellant with a claim for compensation, which the appellant referred to the Tribunal in reliance on s 81A. That section is contained in Div 1. The Tribunal, constituted by Deputy President Clues, concluded that it was without jurisdiction to determine the referral because the claim was in respect of an injury for which the worker (the respondent) had previously made a claim for compensation, and therefore, by virtue of s 80A, was not a claim to which s 81A applies. In reaching this determination, the Tribunal purported to apply the decision of the Full Court in Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134.
2 The Tribunal found further that if it did, in fact, have jurisdiction to determine the s 81A referral, then it would have rejected it on the basis that it did not consider that a reasonably arguable case existed concerning the liability of the appellant to pay compensation pursuant to the claim. If the Tribunal was correct in its conclusion concerning the application of s 80A, then the question arising under s 81A, was, of course, hypothetical.
3 The appeal to this Court is available only in respect of a question of law, by virtue of s 136(1) of the Tasmanian Civil and Administrative Tribunal Act 2020. There are three grounds. Grounds 1 and 2 attack the finding of the Tribunal pursuant to s 80A. Ground 3 asserts that the Tribunal erred in respect of its finding concerning the merits of the s 81A referral. Each of the asserted errors are alleged to be errors of law.
4 The respondent disputes that the appellant's complaints concerning the relevant findings involve questions of law. It submits that each involved a determination of fact, and accordingly, this Court should not entertain the appeal. In any event, the respondent submits that the appellant has not identified error on the part of the Tribunal in any aspect of its determination.
Factual Background
5 The respondent is, and has at all relevant times been, employed by the appellant as a correctional officer. On 5 August 2021, he made a claim for compensation in relation to an injury to his right knee which was suffered on that day. The claim form simply referred to an injury to the "right knee". It alleged that the injury had happened in the following way:
"Walked out of lift with white box, twisted to put box down and twisted right knee."
6 The claim was accompanied by an initial workers compensation medical certificate dated 8 August 2021 which described the injury as "soft tissue injury R) knee", which had occurred on 5 August 2021 in circumstances described as "while at work, twisted R) knee". The certificate certified incapacity for any work from 8 August 2021 to 13 August 2021.
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7 It seems that the appellant did not dispute liability pursuant to s 81A. However, the evidence as to the history of the knee injury and relevant workers compensation certification and payments thereafter, is minimal. The Deputy President simply noted that "The worker returned to work but the physical injury claim was left open so that the worker could continue with physiotherapy". In a medical report by Dr Sadiq, a consultant orthopaedic surgeon commissioned by the appellant to examine and assess the respondent's knee injury, dated 24 March 2023, which was submitted to the Tribunal by the appellant, the author claims to have been provided with "Continuing workers compensation medical certificates dated 10.9.2021 - 12.12.2022". Apart from this, no other material was placed before the Tribunal, or this Court, concerning the history of certification after the claim made on 5 August 2021, until the further developments to which I will now refer.
8 On 21 June 2022, the respondent provided a medical certificate entitled "Continuing/Final" to the appellant. The certificate claimed that the author had examined the respondent on 21 June 2022, and described current symptoms of "right knee pain" and a diagnosis of "flare of arthritis right knee". Under the heading "Comments", the following was stated "2 incidents 20/06/2022 have flared knee pain. Swollen on exam. Rest for 2 weeks and simple pain meds". It certified incapacity for "any work" from 21 June 2022 to 5 July 2022.
9 Thereafter, apart from references in various medical reports to the authors being provided with some medical certificates, there was no direct evidence before the Tribunal or this Court as to the ongoing history of certification. However, the Deputy President found as follows:
"The worker was certified as incapacitated for any work from 21 June 2022 to 5 July 2022. That claim, in the form of a continuing certificate was accepted as part of the physical injury claim. Subsequent to the incidents which occurred on 20 June 2022, the worker had an ongoing incapacity for work but attended work on a return to work plan."
10 In their submissions to me, neither party disputed this finding.
11 On 12 April 2023, the respondent provided the appellant with a further workers compensation claim form and accompanying medical certificate. The claim form was signed by the respondent on 11 April 2023 and includes the following pertinent details:
| • | It specified the date and time that the "injury or condition occurred" as "…/11/2022". |
| • | In response to the query "Give the details of what happened, how it happened and what was involved" the following was written on the form: |
"severe anxiety and depression resulting from ongoing WC injury, lack of meaningful
work on my RTW plan".
• In answer to a question as to "the most serious type of injury or disease caused by this occurrence", the form stated "anxiety and depression". • In answer to a question "Have you made any claims before?" the form stated "August 2021- April 2023 right knee injury". 12 The accompanying medical certificate contained the following details:
• The examination of the worker was conducted on 12 April 2023. • Presenting symptoms were "low mood, anxiety". •
It stated that the worker had stated the condition to be caused by "A disease symptoms of which become evident on 1/3/2023".
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• The certificate stated that the worker had stated that the injury or disease occurred under the following circumstances: "Low mood and anxiety related to a change work capacity and health"
• It certified incapacity for "any work" from 12 April 2023 to 10 May 2023. 13 The material before me contained a further certificate described as "continuing/final" dated 9 May 2023. This certified incapacity for any work from 9 May 2023 to 20 June 2023.
14 On 19 June 2023, the appellant served the respondent with a notice pursuant to s 81A disputing liability to pay compensation by way of weekly payments and any relevant benefit in respect of this claim. The reasons for disputing liability were, in essence, that the relevant injury with respect to which the claim was made was not one for which compensation was payable because it was a disease which is an illness or disorder of the mind which has arisen substantially from reasonable action taken by the employer under the Act in a reasonable manner and/or reasonable administrative action taken in a reasonable manner by the appellant in connection with the worker's employment. This is a specific reference to the preclusions from liability for compensation provided by s 25(1A) (e) and (c) of the Act.
The Tribunal's decision
15 The Tribunal concluded that its jurisdiction to determine the s 81A referral was dependent on whether s 80A applied to the claim for compensation of 12 April 2023. After considering relevant passages from the reasons of Crawford J (with whom Underwood and Blow JJ agreed) in Thornton v Apollo Nominees Pty Ltd, the Deputy President concluded that the critical question was whether "the psychological injury claim is based for its foundation on the physical injury claim". The physical injury claim had been earlier defined as the claim for compensation in relation to the injury to the right knee made on 5 August 2021.
16 In relation to that question, the Tribunal referred to and considered a number of pieces of
evidence, in particular:
• The claim form and medical certificates. •
Emails from the respondent's wife to the appellant, sent prior to the claim, which described a deterioration in the respondent's psychological health arising largely from disappointment and frustration in relation to the appellant's approach to his return to work program and in general its administration of the workers compensation claim.
•
A statement from the injury management co-ordinator of the employer, Mitchell Backhouse, concerning a telephone conversation which he had with the respondent about the report of Dr Sadiq. In the report, Dr Sadiq expressed the opinion that ongoing symptoms affecting the right knee were due to pre-existing degenerative disease and were not a compensable injury. He opined that a surgical procedure on the knee recommended by another doctor would not be compensable for this reason. Mr Backhouse discussed the report with the respondent, and in particular, advised that the proposed surgery would not be "an employer expense". The statement claimed that the respondent had stated that "the workers compensation process had caused a decline in his mental health and as such he was considering lodging a new claim for compensation". The relevant claim was served on the appellant six days later.
•
A report from Dr David Kutlaca, a psychiatrist commissioned by the appellant to examine the respondent. Dr Kutlaca diagnosed an adjustment disorder with depression and anxiety. The report supported a causal link between the right knee injury and the psychiatric disorder.
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In response to a question concerning whether the employment "was the major or most significant factor in causing the injury", Dr Kutlaca stated as follows:
"In so far as I understand this question, (the workers) employment has contributed to the deterioration in his mental state as outlined above. It remains my opinion, however, that the substantive cause of his adjustment disorder diagnosed above is the pathology in the 'workers' right knee and the relevant context and consequences."
17 On the basis of this evidence, as well as the contents of the claim form and accompanying certificate, the Deputy President found:
"The evidence is that at the time the worker suffered the psychological injury, he had an ongoing entitlement to worker's compensation benefits as a result of the physical injury. The evidence provided by the employer in this case supports a finding that the psychological claim and his incapacity for work from 12 April 2023, was based for its foundation on the suffering by him of the physical injury that he initially suffered to his right knee at work on 5 August 2021 and the exacerbation of it on 20 June 2022.
The claim form, the initial workers compensation medical certificate and the worker's wife all indicate that the cause of the psychological injury is the ongoing effects of the physical injury."
18 Ultimately, in relation to the jurisdictional issue, the Deputy President concluded "that the psychological injury claim is based on the physical injury claim and therefore the employer is not entitled to dispute liability for the psychological injury claim under s 81A(1)".
19 The Deputy President then considered the merits of the s 81A referral "if I am wrong about the jurisdictional issue". She found that Dr Kutlaca's evidence established that "the 'major' or 'substantive' cause of the psychological injury is the pathology in the worker's right knee and the relevant emotional, context and consequences". Therefore, because the evidence "supports a finding that the substantial cause of the psychological injury was the physical injury, the employer could not establish its grounds of dispute". In particular, it could not establish that the psychological injury had arisen from reasonable action under s 25(1A)(e) or reasonable administrative action taken in a reasonable manner under s 25(1A)(c). However, this conclusion can be regarded as hypothetical because the ultimate disposition of the referral depended on the finding that the Tribunal did not have jurisdiction to determine it.
Do grounds 1 and 2 raise a question of law?
20 These grounds are as follows:
"1 The Tribunal erred in law in that it wrongly determined that a jurisdictional fact existed, namely that the claim for workers compensation made by the Respondent on or about 12 April 2023 was a claim for compensation in respect of an injury for which the Respondent had previously made a claim for compensation against the Appellant pursuant to s 80A of the Workers Rehabilitation and Compensation Act1988 (Act). 2 Alternatively, in determining that the claim for workers compensation made by the Respondent on or about 12 April 2023 was a claim for compensation in respect of an injury for which the Respondent had previously made a claim for compensation against the Appellant, the Tribunal erred in law in that such determination was not one which, on the materials before the Tribunal, could reasonably be made."
21 The argument which underpins both grounds is that the Deputy President erred in finding that the claim for psychological injury was in respect of the injury to the respondent's knee. In essence, the appellant argues that the evidence permitted a finding that the claimed psychological injury arose from the manner in which the appellant had dealt with the workers compensation claim in respect of the
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physical injury, rather than arising as a direct consequence of the right knee injury. It is argued the latter would establish the nexus required by s 80A, but the former does not. The appellant submits that because this finding was at least open on the evidence, the Tribunal should have found that it had jurisdiction to determine the s 81A referral.
22 The respondent submits that neither ground asserts an error of law. It is argued that the Tribunal's determination that the psychological injury claim was in respect of the physical injury was a finding of fact, and does not involve a question of law. This argument can be dealt with briefly. It is well established that a question of law arises if the issue raised by a ground of appeal is whether primary facts as found fall within a statutory definition or expression, and only one conclusion is open. However, if it is "reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views, then the question becomes one of fact and not of law". See Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6 per Martin AJ; Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 per Crawford J referring to Vetter v Lake Macquarie City Council (2001) 202 CLR 439, and Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547.
23 In this case, the primary facts referred to by the Tribunal in its decision are not in contention. They arise from uncontested evidence. For example, there is no dispute about the contents of the claim form and accompanying certificate, the contents of the emails from the respondent's wife, the conversation with the claim coordinator or the opinions expressed by the medical experts. The real issue is whether these primary facts support the Tribunal's conclusion that the psychological injury claim was in respect of the physical injury. There can only be one correct conclusion about this. In this case, that is very clear because, as will be seen, the resolution of the grounds of appeal will depend upon the correct interpretation and operation of s 80A. The grounds therefore raise questions of law.
Consideration of grounds 1 and 2
24 As already noted, the appellant's argument is that the evidence permits more than one conclusion concerning the nexus between the psychological injury and the physical injury. The appellant argues that an available conclusion arising from the evidence is that the claim for psychological injury was not in respect of the injury to the respondent's knee, but rather resulted from the actions taken by the appellant to deal with the workers compensation claim arising from the knee injury. For example, the appellant submits that a possible explanation of the psychological injury is that it arose from the respondent's distress upon learning that on the basis of Dr Sadiq's report, the employer would not be funding the recommended knee surgery. It is argued that this is reasonable action taken by the appellant as the respondent's employer, and hence the claim is in respect of that action, and not a consequence of the knee injury. By logical extension, this argument applies to any action taken by the appellant in respect of the workers compensation claim, which can, on the evidence, be seen as the cause of the respondent's psychological symptoms. The submission is that because the cause of the psychological symptoms is the action taken by the appellant, and not the knee injury itself, the appellant is able to dispute liability under s 81A on the basis that the action it took in relation to the first injury was reasonable, and hence compensation is not payable having regard to s 25(1A)(c) and/or (e).
25 In my view, this argument is flawed in two fundamental respects. Firstly, it focusses on conclusions available from the objective evidence about the relevant causal connection, and does not address the correct question requiring determination under s 80A. Secondly, it misapplies the required connection between the claim and the injury, in particular the meaning and application of the requirement that the claim must be "in respect of an injury".
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26 In Thornton, Crawford J made it clear that the question upon which the application of s 80A depends is the nature of the claim made by the appellant, not its objective validity:
"A question of fact therefore required determination by the Tribunal. It concerned the nature of the claim that had been made by the appellant against the respondent and in respect of which the respondent had purported to dispute liability and to refer to the Tribunal under s 80A(1), but not the validity of his claim. Further, the question concerned his claim as communicated to the respondent, upon receipt of which the respondent purported to raise the dispute under s81A(1). In State of Tasmania v Parsons (supra) at pars 69 - 73, I discussed in a different context why it may be important to determine precisely what is being claimed by the worker."
27 As his Honour notes, the critical question under s80A will depend on the nature of the claim communicated to the employer. As was explained in State of Tasmania v Parsons [2002] TASSC 59, this will depend on information concerning "the particular injury upon which the claim is based" derived from the claim form, the accompanying certificate, the circumstances in which that information is communicated to the respondent and any other contemporaneous communication to the employer as to the nature of the claim. The injury to which the claim relates, and hence the application of s 80A will depend on the evidence concerning this question, not on whether the evidence establishes, as a matter of objective reality, a causal link between an earlier injury and the injury which is the subject of the claim.
28 It seems to me that both the appellant's arguments and the Tribunal's consideration of the relevant causal connection have strayed into a consideration of evidence and factual questions concerned with the latter question. For example, both refer to and rely upon the report of Dr Kutlaca. This report was commissioned by the appellant and received after the s 81A referral and hence well after the receipt by the appellant of the claim. It addressed and supported the actual existence of a causal link between the physical injury and the psychological injury. It therefore went to the validity of the claim made by the respondent. This was not a question which needed to be determined by the Tribunal under s 80A. The critical question was the nature of the respondent's claim, as communicated to the appellant, not its validity.
29 An examination of that claim, as communicated to the appellant, provides some support for the appellant's argument that the injury identified in the claim was a psychological condition which had arisen, in some part at least, from the action taken by the appellant in respect of the physical injury, and in particular the workers compensation claim relating to it. The communications relevant to this question included the claim form itself, the medical certificate which accompanied it, the email communications between the respondent's wife and the appellant, and the conversation between the injury management coordinator and the respondent on 6 April 2023. The Tribunal's decision acknowledged the role played by the workers compensation process in the decline in the respondent's mental health. However, the Tribunal's conclusion was that this evidence, together with Dr Kutlaca's opinion, established that the psychological claim was "based for its foundation on the suffering by the worker of the physical injury claim."
30 In Thornton, the Full Court was dealing with a case in which the original injury was a physical injury. This injury was certified by a series of consecutive certificates to have caused physical incapacity. However, the last certificate, which followed without an interruption in the chain of certification, referred for the first time, to incapacity arising from depressed mood and poor memory, in addition to the ongoing physical symptoms of the original injury. According to Crawford J, it was unchallenged that the worker's claim for a continuation of weekly payments was "based for its foundation on the suffering by him of" the original physical injury. His Honour observed that the scheme of the Act permitted the employer to dispute liability under s 81A in respect of the foundational injury under s25 (1), but that where that challenge is not made within the requisite time, or the reference is determined in favour of the worker, "thereafter, so long as the worker claims further payments of weekly
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compensation because of a claimed incapacity for work that he or she claims to have resulted from the original injury that was suffered and that is the s 25(1) foundational basis for the claim, and the existence of the incapacity is supported by a certificate in an approved form as required by s 69(1), the provisions of s 81A(1) cannot be used by the employer to dispute the claim, except in the circumstances provided for by s 69(13)". Section 69(13) permits an employer to treat a certificate claiming incapacity as a claim for compensation "to which section 81A applies", if there has been a break in certification of more than 14 days.
31 In Thornton, the critical point was that provided that the worker's claim of incapacity was "based for its foundation" on the original injury, it was immaterial that the condition producing the claimed incapacity may have been of a different nature to that previously certified as having been caused by the original injury. Hence, the subsequent development of psychological symptoms as a consequence of the original physical injury precluded the employer from referring the claim under s 81A.
32 Of course, the claimed link between the original injury and the development of a psychological condition was not in issue in Thornton, as it is in this case. The actual text of the provision defines the requisite link as a claim "in respect of an injury for which the worker" has not previously made a claim. Because this question was not in issue in Thornton, care must be exercised in defining "in respect of" by use of the term "based for its foundation". In Thornton, the psychological injury was clearly and without challenge based for its foundation on the original injury. However, it cannot therefore be concluded that the causal link must always meet that description in order to establish the injury which is the subject of the claim for the purposes of s 80A. Ultimately, the question is to identify the injury in respect of which the claim for compensation is made, and s 80A will only apply if that injury is not one which has been previously made by the worker.
33 The term "in respect of" appears regularly in statutory provisions. It is used to define the required relationship between two subjects. The many judicial observations about its meaning seem to be adequately summed up in the following comments by Deane, Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 at 653-654:
"Undoubtedly the words 'in respect of' have a wide meaning, although it is going somewhat too far to say, as did Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly, that 'they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer'. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."
34 The context of the use of the phrase in s 80A will be informed by the legislative history and the purpose of the provision. As Crawford J noted in Thornton, ss 80A and 69(13), were inserted into the Act by the Workers Rehabilitation and Compensation Amendment Act 2000. His Honour noted that the purpose of insertion of both provisions was to overcome problems "it was perceived to have been brought about by GL and VN Barber Pty Ltd v Ryan [1999] 8 Tas R 308". In that case, Cox CJ had observed that service of a workers compensation medical certificate, after a break in certification, constituted a fresh claim for compensation, which could be referred to the Tribunal under s 81A(1). This had apparently led to a significant increase in workload for the Tribunal and the purpose of the relevant provisions was to clarify, and restrict, the circumstances in which such a referral could be made, so as to reduce that workload. Crawford J after quoting from the second reading speech, observed that "the purpose of the relevant amendments was to limit the disputes that could be raised by way of referral under s 81A(1), to the first of such claims made following and arising out of the suffering of an injury, save in a situation for which s 69(13) provides".
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35 This legislative purpose provides important context, not just for the meaning of the phrase "in respect of", but generally for the intended operation of the section. In particular, it is relevant to the appellant's argument concerning a construction of s 80A which permits the section to apply to a claim if one of a number of possible conclusions, having regard to the objective evidence, supports a finding that the claim is not in respect of the original compensable injury. It was argued that this is appropriate essentially for policy reasons, being the desirability of employers having certainty as to when their obligations to pay weekly compensation arise, and to reduce the volume of claims which the Tribunal finds are precluded by a lack of jurisdiction arising from the application of s 80A. It is also claimed that a finding that s 81A does not apply in circumstances in which psychological injury arises from action by an employer in handling the original claim is contrary to the legislative purpose of s 25(1A), and leaves that provision "with nothing to do", which is contrary to the principle of statutory construction which requires meaning to be attributed to all provisions of a statute.
36 I do not accept these arguments. The argument that the section should be read in a way that permits s 81A referrals in an expanded number of cases is directly inconsistent with the legislative purpose of its introduction into the Act. Further, the argument that employers are left in a state of uncertainty when faced with a claim is unlikely to cause much practical difficulty. Section 69(13) which was introduced at the same time as s 80A, expressly provides the employer with access to s 81A whenever there has been a break in certification of more than 14 days. Hence, the employer is only going to be facing the s 80A question when as part of a continuous period of certification, there is a change in the effect of the original injury claimed by the worker. In the usual case, the question will not be whether payments should be made immediately, but rather whether they should be continued. Further, as Crawford J pointed out in Thornton, even when s 81A is closed off by s 80A, the employer still has a number of avenues of relief available to it. His Honour referred to ss 81A(5) and 86(1)(c). Of course, there may be some doubt about the application of these sections given that they are contained in Div 1, but this question does not require resolution in this case. In any event, there is no doubt that the employer can refer the claim to the Tribunal, and have it determined on its merits, under s 42. The merits to be determined on such a referral would include the relevance and effect of s 25(1A). The unavailability of a 81A referral may result in the employer having to continue weekly payments for a longer period than may ultimately be justified, but this benefit in favour of the worker is inherent in the compensation scheme established by the Act, and an expected consequence of the legislative intention to limit the use s 81A in such circumstances.
37 In my view, and acknowledging the Tribunal's unnecessary reference to Dr Kutlaca's report, I am satisfied that the Deputy President arrived at the correct conclusion, having regard to the undisputed evidence. There can be no question that the combination of information communicated to the appellant concerning the claim, permitted only one conclusion, that the basis of the claim was that the worker was suffering from psychological symptoms which had arisen from the physical injury. The claim and surrounding information attributed this to some extent to action taken in respect of the respondent's employment, but this was exclusively concerned with the conduct of the workers compensation claim arising from the knee injury. There is nothing in the respondent's claim which relates to action in respect of his employment, other than that directly arising from the workers compensation claim for, and the effects of, his knee injury. I do not accept the respondent's argument that a distinction should be made between a secondary but direct consequence of the original injury and the manner in which the worker's compensation claim in respect of that injury is handled, and how that action impacts on the worker. In my view, in this case, even if the claim can be viewed as asserting that the whole of the incapacity arises from the return to work program and other aspects of the ongoing workers compensation claim, there is still no question that the claim asserting incapacity because of psychological symptoms is in respect of the knee injury. As a matter of common sense, it can often be expected that a psychological condition will occur as a consequence of the ongoing effects of a physical injury on the worker's life. This must include the impact arising from the ongoing action taken by the employer in respect of the worker's employment. In my view, the causal link clearly falls within the ambit of that contemplated by the term "in respect of" as it appears in s 80A.
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38 I am satisfied that the Tribunal's conclusion that the respondent's claim for incapacity arising from psychological symptoms was in respect of the physical injury was correct, and indeed the only conclusion open on the undisputed evidence. It follows that grounds 1 and 2 are lacking in merit.
Ground 3
39 Having regard to my conclusion with respect to the application of s 80A in this case, it is neither necessary nor desirable to deal with ground 3. Section 81A had no application to this claim, and the purported referral had no other statutory basis. The Tribunal was without jurisdiction in the sense that no justiciable issue was before it. I decline therefore to venture into a hypothetical exercise, that would amount to no more than an expression of opinion.
Conclusion
40 The appeal is without merit. My order is that it be dismissed.
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