Goldilocks evidence for reasonably arguable case determination still needed for employer to discharge onus Goldilocks evidence for reasonably arguable case determination still needed for employer to discharge onus

Goldilocks evidence for reasonably arguable case determination still needed for employer to discharge onus

12 July 2021 | Workers' Compensation

The Supreme Court further review what is needed for a reasonably arguable case determination under s81A of the Act - make sure you have enough evidence to discharge the onus and think about what directions the Tribunal could go with the evidence you have presented.

In Issue

  • This is an appeal by an employer from a decision from the Workers Rehabilitation and Compensation Tribunal (Tribunal) regarding s81A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
  • The question for determination by the Supreme Court was whether the worker was suffering from an injury which is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease as prescribed in s3(1) of the Act, and if so, whether the worker’s employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.

The background

The worker sustained a ‘strain’ injury to his right shoulder/cervical spine whilst carrying out work duties on 20 February 2020. He also had an underlying medical condition, namely degenerative cervical spondylosis. On 28 April 2020 the worker make a claim for compensation for increased pain on right side of the neck, with numbness and weakness and wasting scapular region following an incident that occurred on 20 February 2020. The worker was deemed fit for light duties from 26 March 2020 to 10 April 2020. On 24 March 2020 an MRI was completed, the results were passed onto a spine specialist, and given the workers lack of improvement over the weeks urgent surgery was recommended. The employer’s insurer sought a medical report from neurosurgeon Mr Dohrmann, who said in his first report that that the “injury” resulted from an incident at work in February 2020 which caused an aggravation of a previously asymptomatic degenerative cervical spondylosis.

Following that report, Mr Dohrman was provided with statements from two employees of the employer which described a different history as reported by the worker to Mr Dohrmann as to him taking some leave to care for his wife and only working 8 days between the initial symptoms and then making his claim. As a result of that additional information, Mr Dohrman advised that he could not be certain that the event at work on 20 February 2020 was the substantial cause of the aggravation in the worker’s underlying degenerative condition, noting that he had 17 days off shift between the onset of symptoms and his reporting of those symptoms.

The decision from the Tribunal

At first instance the Tribunal determined that the worker was entitled to payments from the employer because the employer had failed to establish there was a reasonably arguable case to dispute liability for the claim under s81A of the Act.

The Tribunal rejected the employer’s argument and found that the condition did fall within the extended definition of injury. The question before the Tribunal then turned to whether there was a reasonable argument that the worker's employment was not the major or most significant contributing factor to that aggravation. Mr Dohrmann’s first report led to that conclusion. Consideration then turned to other material before the Tribunal which resulted in the conclusion that it was reasonably arguable that the worker's employment was not the major or most significant contributing factor to the aggravated disease. The Chief Commissioner said there was no evidence at the hearing to support a break in the causal chain and that she was unpersuaded by Mr Dohrmann's second opinion being that he was uncertain as to whether the event at work on 20 February 2020 was the substantial cause of the aggravation in the worker’s underlying neck condition.

The issues on appeal

  • Whether the Tribunal had erred in determining that there was no reasonably arguable case regarding the employer’s’ liability for the claim.
  • Whether the worker had a pre-existing disease, whether there had been an aggravation or acceleration of that disease and whether the employment was the major or most significant contributing factor to that acceleration or aggravation.
  • Whether the Tribunal had erred in evaluating the case because there was a reasonable chance that the employer could have discharged the onus of proof.

The Decision on appeal

  • The Court looked at the more recent cases of Bradshaw and Long that have dealt with what this means and affirmed those approaches.
  • In considering the evidence of Mr Dohrmann the Court was critical that some of the materials provided to him which led him to change his opinion were not presented to the Tribunal. The Court affirmed the Tribunal’s ability to have regard to absence of evidence or suggestion of some other event which may have precipitated the emergence of the symptoms experienced by the worker. This may turn to a natural progression of the pre-existing disease, however there was no evidence to the contrary presented that there was a strong temporal link to the event described by the worker to have occurred on 20 February 2020.
  • The Court upheld the decision of the Tribunal and found that having regard to the materials before it, the Tribunal was entitled to conclude that the only plausible explanation for the emergence or worsening of the worker's condition which led to his incapacity was that his employment was the major or most significant contributing factor to that aggravation. The Court said that this is the type of case in which reasonable minds could differ as to the existence of an arguable case, which cannot amount to an error in a point of law on appeal.  The other two grounds were dismissed. The appeal was dismissed and the decision from the Tribunal was maintained that being there was no reasonably arguable case.
  • In reaching their decision the Court noted that the Tribunal’s duty lies in determining outcomes on the material put before it, not consider what evidence may be contested at a later date. The onus is on the employer to establish it has a reasonably arguable case and to deliver evidentiary material to support this or identify weaknesses in the workers claim, it is not sufficient for the employer to want to put the worker to proof.

Implications for you

What this means is that we have to be careful on what materials are presented before the Tribunal in its consideration as to whether a reasonably arguable case determination can be made. The Court here affirmed the prior decision as to what amounts to an “aggravation” and disease and in applying those causation tests, whether the evidence, as it stands, leads to the Tribunal being able to say that the employer’s evidence identifies weaknesses or deficiencies in the worker's claim which then leads to a conclusion that it is reasonably arguable. The employer cannot argue about what future evidence might be presented at a full hearing and it certainly cannot submit that the basis for its dispute is to put the worker to proof. If you have a doctor, as is the case here, that changed his/her mind, based upon additional materials, be clear about the factors that caused the change of opinion and whether those materials clearly support the contention that there is a reasonably arguable case. If you have multiple reports from your doctor,  your legal advice should consider all reports and provide advice to you on how best to present that to the Tribunal for a s81A dispute of the worker’s claim.

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Melinda Bird

Melinda Bird

Senior Associate