Latest case updates for self-insurers – June 2026

Colin Scott v Return to Work Corporation of South Australia [2026] SAET 52

Background

Mr Colin Scott was employed as a construction carpenter and later as a handyman. On 2 March 2002, he injured his left knee when he struck it against timber while building a pergola. The injury resulted in a medial meniscal tear.

Mr Scott underwent arthroscopic surgery in June 2002, including a partial medial meniscectomy. He returned to work but continued to experience pain, instability and functional restriction in his left knee.

Over time, he developed osteoarthritis in both knees. In 2011, imaging showed asymmetrical degeneration, with more advanced changes in the left knee. By 2017, the left knee had progressed to ‘bone-on-bone’ degeneration. Total knee replacement surgery was subsequently recommended but deferred due to Mr Scott’s age and continued employment.

On 2 September 2024, Mr Scott sought pre-approval for a left total knee replacement under s 33 of the Return to Work Act 2014 (SA). The request relied on a recommendation from Dr Adrian Bauze. The Return to Work Corporation of South Australia rejected the request on 12 December 2024, arguing that the need for surgery resulted from natural bilateral osteoarthritis rather than the 2002 work injury.

The issue before Deputy President Judge Carrel was whether Mr Scott’s current need for a left total knee replacement was ‘in consequence of’ his 2002 work injury within the meaning of s 33(1) of the Act.

Findings

The Tribunal held that s 33 requires only a sufficient causal connection between the work injury and the need for treatment. It was not necessary to prove that the injury was the sole or dominant cause. In relying on various authorities, the Tribunal confirmed that the phrase ‘in consequence of’ imposes a less stringent threshold than common law causation.

The Tribunal found that Mr Scott had no pre-existing degeneration in his left knee in 2002. The injury and subsequent meniscectomy materially contributed to and accelerated the onset and progression of osteoarthritis in that knee.

Significant weight was placed on the 2011 radiology, which showed established degeneration in the left knee and only minimal degeneration in the right knee. The Tribunal considered this asymmetry to be strong evidence that the work injury materially contributed to the early onset and progression of osteoarthritis in the left knee.

The Tribunal accepted that by 2017, the left knee had progressed to bone-on-bone degeneration and that total knee replacement was recommended at that time. It also accepted that degeneration cannot progress beyond bone-on-bone, that the right knee had effectively ‘caught up’ by 2024. Mr Scott’s decision to delay surgery on medical advice did not break the causal connection.

The Tribunal accepted Mr Scott as a credible witness and found that his left knee symptoms had persisted since 2002 without fully resolving. There was no intervening injury.

The Tribunal distinguished Curyer v Department for Child Protection [2022] SAET 26, on the basis that there was no pre-existing degeneration in this case, the injury was not minor, and there was clear asymmetrical progression linked to the work injury. 

Accordingly, the Tribunal found that Mr Scott’s need for a left total knee replacement was in consequence of his 2002 work injury. The Return to Work Corporation of South Australia’s decision was set aside and Mr Scott was entitled to compensation for the surgery.

Key takeaways

The phrase ‘in consequence of’ in section 33 sets a relatively low causal threshold. A worker need only show a sufficient connection between the work injury and the treatment claimed for it to be compensable, subject to consideration of all of the facts.

The Tribunal will focus on the totality of the evidence, including whether there was any pre-existing degeneration or intervening event, along with the injured worker’s clinical presentation and symptom progression, rather than a single radiological snapshot at the time surgery is sought.

Review of the precedent as applied in the Personnel Injury Commission

Background

In Jamsek ^[1] and Personnel Contracting ^[2] the High Court confirmed the correct approach for determining whether a worker was an employee or an independent contractor. Previously, courts had applied a multifactorial test which employed the use of ‘indicia’, in assessing the relationship between two parties.

Those decisions deliberately moved the test away from indicia and toward a contract-first approach. 

The indicia are not entirely redundant, however. Many indicia may be found within the contractual terms between the parties and may assist in characterising the relationship when viewed through a contractual lens. Equally, they might be useful in identifying terms of a verbal arrangement. However, it is the terms themselves, which once identified, are to be the centre of the analysis.  

Some time has passed since both High Court decisions were delivered. We now look to assess how the Personal Injury Commission ( PIC ) has applied Jamsek and Personnel Contracting and review the decisions of Tsakiris ^[3] (January 2026 Presidential Decision) and Zelimir ^[4] (May 2026 Presidential Decision), which consider the worker versus independent contractor issue. 

Tsakiris 

This matter concerned a pool concrete specialist named Mr Tsakiris, who had been engaged by Active Pools and Spas for a single day’s labour. Mr Tsakiris was assisting with the cutting and shaping of a concrete pool at a residential property when he was injured. 

At first instance in the PIC it was found that Mr Tsakiris had not discharged the onus of establishing he was a worker for the purposes of section 4 of the 1998 Act at the time of his injury. The matter was appealed at the presidential level, and on review, it was evident that the Member of the Commission had applied the multifactorial test, and not the contract centric approach endorsed by the High Court in Jamsek and Personnel Contracting . 

Notably, neither party to the dispute directed the Commission to those precedents. This was on the basis they had contended Jamsek and Personnel Contracting applied to written contracts, whereas on the present facts the contract was oral. 

Deputy President Searle, on review of Personnel Contracting and Jamsek, determined that the fact the contract was entirely oral does not mean that those precedents have no application, rather the converse was the case. The essential task was to identify the contractual terms and then determine the relationship based on those terms. 

Applying a contract first approach, the Deputy President determined that Mr Tsakiris had been engaged as a casual employee for one day’s work.   

Zelimir 

This matter concerned a painter, Mr Markovic, who supplied labour services to a small painting company, Nicol’s Painting Services. While working, Mr Markovic fell from a ladder and injured himself. 

The Commission held that Mr Markovic was a casual employee, despite his use of an ABN. Importantly, it was found that he was not merely a deemed worker but a worker for the purposes of the Act. 

Mr Ostojic, the owner of Nickol’s Painting Services, had previously worked at another painting company, prior to commencing his own business, where he met Mt Markovic. When Mr Ostojic commenced his own business, he invited Mr Markovic to work for him, which he did. 

The relationship continued and Mr Markovic was frequently offered work by Nickol’s Painting Services. On the facts, it was clear that a legally effective contract was in place. The question to be determined was what type of contract was in place. 

Mr Markovic contented he was an employee, while Nickol’s Painting Services, somewhat unusually, contended that regardless of Mr Markovic’s status, the legal relationship had by that time ceased. It was alleged that Mr Markovic at the time of injury was attending as a friend, or as an independent contractor for the owner of the house (as opposed to an agent of Nickol’s Painting Services). Mr Markovic denied this and maintained that he was attending a job for Nickol’s Painting Services. 

Similar to Tsakiris , neither the applicant nor the respondent set out the relevant legal principles regarding when a person is to be held as an employee or a contractor. Only iCare’s solicitors, the second respondent, directed the member to the correct precedent. 

The Deputy President, as in Tsakiris , began his analysis with the application of the precedent set out in Personnel Contracting and Jamsek . In Mr Markovic’s case, the Deputy President determined that there is clearly a legal relationship for the performance of work for a financial reward, the focus must be on the nature of that relationship.

With respect to the claim that Mr Markovic was not working for the employer, it was found that Mr Ostojic’s testimony was logically inconsistent and the testimony of Mr Markovic was preferred. Having identified the contractual terms, the Deputy President applied a contract-first approach and concluded that Mr Markovic was not a deemed worker but was a casual employee and therefore a worker for the purposes of section 4 of the 1998 Act. 

Key takeaways

The Presidential decisions in Tsakiris and Zelimir confirm the continued application of the contract-first approach established in Jamsek and Personnel Contracting . 

Importantly, the principles are not confined to written contracts. Where arrangements are oral, the Commission will first identify the contractual terms before determining the nature of the relationship. 

The decisions also reinforce that the use of an ABN will not, of itself, determine whether a person is a worker, deemed worker or independent contractor. 

Pisa v Victorian WorkCover Authority [2026] VCC 640

Background

Ms Pisa was employed by the Department of Justice & Community Safety as a records officer, based at the Dame Phylis Frost Centre in Ravenhall. She slipped and fell in an informal gravel car park as she walked back to her car at the end of the workday and injured her shoulder. Ms Pisa lodged a worker’s injury claim, which was accepted by the agent. Subsequently, Ms Pisa commenced common law proceedings after her serious injury application was rejected by the Victorian WorkCover Authority. 

The key issues considered by the County Court were:

• the impact of the agent accepting the primary claim;
• whether the 'interval or interlude' line of authority applied; and
• whether the injury occurred ‘in the course of’ her employment given she had finished her duties for the day.

Findings

The impact of the claim being accepted

The court did not treat the acceptance of the claim as a conclusive admission of compensability. 

Was there an interval or interlude?

The Court distinguished the interval and interlude authorities on the basis that Ms Pisa’s injury was not sustained between two discrete periods of actual work, such as on a lunchbreak or while on an overnight stay in a motel for the purpose of employment. The relevant inquiry was instead whether Ms Pisa’s working day had finished when she fell. 

Was the working day over?

The court considered the time and place of the injury, whether the area was under the employer’s control, and what Ms Pisa is reasonably expected to do when arriving or leaving work to determine if her fall occurred ‘in the course of employment’. 

The court found that:

• Ms Pisa fell soon after she had finished her duties as she was in the process of leaving work;
• the area where Ms Pisa fell was occupied by the employer and under their control;
• staff regularly parked in the informal car park and the employer knew about this parking arrangement; and
• Ms Pisa was walking one of two permissible routes to her car to leave work. She was present in the area because of her employment, rather than as a member of the public.

Accordingly, the court held that her injury occurred in the course of her employment, even though she had finished work for the day and was heading home.

Key learnings

The conclusion of a worker’s daily duties does not necessarily mean a subsequent injury will be non-compensable. Close consideration needs to be given to where the worker was injured, when they were injured and what they were doing at the time of injury in determining whether to accept or reject a claim in these circumstances. 

Hungry Hampers Catering v Rossington [2025] VSC 84

Background

For a detailed summary of the earlier Magistrates’ Court judgment in this matter, please refer to our September 2024 newsletter. In short, the worker injured his right shoulder in 2011. In 2013 he accepted a lump sum payment based on an 11 per cent whole person impairment. The worker injured the same shoulder again in 2018 and subsequently lodged a second impairment benefit claim. The agent accepted liability for the 2018 injury but assessed a 0 per cent impairment, resulting in no entitlement. The worker disputed the 0 per cent assessment, and the matter was referred to the Medical Panel, who assessed a 7 per cent whole person impairment. The agent subsequently issued a further notice of entitlement, assessing a 7 per cent whole person impairment but reducing this to $nil by deducting the 2013 payment and relying on section 217(4).

The worker commenced proceedings in the Magistrates’ Court challenging the further notice and sought a determination that he was entitled to the full $17,216. The Magistrates’ Court held that the agent did not properly apply the Medical Panel’s opinion and determined that the worker was entitled to impairment benefit compensation of $17,216 for the 2018 injury. The employer appealed the decision to the Supreme Court of Appeal. 

The key issue considered by the court on appeal is what is 'final and conclusive' about a Medical Panel opinion.

Findings

The court held that the Medical Panel’s reasons, once admitted into evidence, are not final and binding. The Medical Panel’s conclusion that there were no impairments from unrelated injuries to be disregarded or apportioned has the status of relevant expert opinion but is not a final and conclusive opinion in respect of the section 217(4) issue. This can be contrasted with the Medical Panel Opinion as set out in the Certificate, which is final and conclusive.

Accordingly, the court found that it was not open to the Magistrate to adopt and accept the Medical Panel’s reasons without determining the issue on the whole of the evidence. The Magistrate was also not permitted to treat the binding nature of the Panel’s opinion as a basis to prevent the agent from deducting the 2013 impairment sum. 

The matter was remitted to the Magistrates’ Court for hearing to determine, on all the evidence, whether the 2018 right shoulder injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of the earlier shoulder injury. 

Key learnings

This decision reinforces that while Medical Panel Certificates are final and binding on the questions they determine, the accompanying reasons do not carry the same status and should instead be treated as expert evidence to be weighed alongside the remainder of the evidence. Decision-makers must therefore undertake their own assessment of the issues in dispute, rather than adopting the Panel’s reasoning without scrutiny. 

Habiba Baig v Toll Personnel Pty Ltd & Ors [2025] VSC 728 

Background

Ms Baig commenced employment with Toll Personnel Pty Ltd in late May 2023 and lodged a worker’s injury claim in August 2023. She claimed she sustained injury to her back, right shoulder and neck on 27 July 2023, after heavy lifting. Toll rejected liability for the claimed injuries, and the matter was subsequently referred to the Medical Panel via the Workplace Injury Commission. 

The Medical Panel concluded the worker was suffering from symptoms of neck, right shoulder and low back pain, and a resolved soft tissue injury to the low back. The Panel found employment was a significant contributing factor in relation to the resolved low back soft tissue injury only, and not the neck or right shoulder injuries. The Panel found the worker did have an incapacity for work, but that the incapacity did not result from and was not materially contributed to by any claimed injury. Ms Baig lodged an application for judicial review of the Panel determination. 

Findings

Ms Baig claimed three grounds of review in her application: 

Ground one – Jurisdictional error 

Ms Baig alleged the Panel made a factual error in stating that she had complained of earlier back and shoulder injuries before she started working with Toll. The court rejected this ground, finding Ms Baig’s argument ignored the full context of the Panel’s observations and noted the Panel was correct in their statement.  

Ground two – legal unreasonableness due to illogicality or irrationality

Ms Baig submitted that it was illogical to find she had incapacity to work due to pain, but no ongoing medical condition to explain the pain. The Medical Panel concluded that, while Ms Baig was suffering from the symptoms of pain, there was no organic or medical condition resulting from her claimed injury that would be the cause of that pain. The court concluded that when considered as a whole, the Medical Panel’s reasoning process was patently logical and rational. 

Ground three – inadequate reasons / error of law 

Ms Baig claimed the Medical Panel failed to provide written reasons sufficient to comply with section 313(2) of the WIRC Act, which requires a Medical Panel to furnish a written statement of reasons for its opinion.

Applying Wingfoot Australia Partners Pty Ltd v Kocak, the court held the Panel’s reasons were adequate. The Panel did not need to explain alternative non-medical causes of pain because it was not asked to. 

Ms Baig’s proceeding was ultimately dismissed. 

Key learnings

This decision highlights the limited scope for successfully challenging a Medical Panel determination on judicial review. The court reaffirmed that factual findings will not be disturbed where they are reasonably open on the evidence. It also confirms that Panels are not required to address matters beyond the questions referred to them, and that their obligation is to provide reasons that are sufficient, not exhaustive. 

Fraser v Bemergals Construction Pty Ltd [2025] VCC 1552  

Background

Dylan Fraser was a 25-year-old man who worked as a full-time labourer for Bemergals Construction (the defendant). Mr Fraser’s father was the director of Bemergals at the time of the injury and worked out of two workplaces, one in Corryong, Victoria (where he lived with his father) and one in Thredbo, New South Wales. Hesuffered an eye injury on 6 March 2017 when working out of the New South Wales workplace.  

Bemergals contended that Mr Fraser’s employment was solely connected with Thredbo and not Corryong, meaning he did not satisfy the provisions of section 37 of the Act and, consequently, had no entitlement to pursue a serious injury application. 

Mr Fraser submitted that he started his workday at Corryong where he would receive instructions, tools and a trailer to go to Thredbo. He would then travel to Thredbo, where he would often stay overnight. On the days he returned to Corryong, he would perform work at the shed on the property, such as preparing the trailers. 

Bemergals relied upon the fact Mr Fraser performed construction work only at Thredbo, and not on any sites in Victoria, he reported for work in Thredbo and the incident occurred in Thredbo. The company submitted that the location from where Mr Fraser initially received instructions and collected materials happened to be his place of residence and any steps before he commenced getting paid for the day were ‘akin to a person simply getting ready for work at their home at the start of the working day’. 

Findings

The court found Mr Fraser usually worked and was usually based in both Victoria and New South Wales. Accordingly, the court looked to the employer’s principal place of business, which was in Victoria as confirmed in an ASIC search. Mr Fraser’s employment was therefore connected to Victoria. 

Key learnings

This case highlights that when a worker’s duties span multiple jurisdictions, the determination of where their employment is connected to is not limited to where the physical work or injury occurs. Courts will instead follow the tiered approach in section 37 and consider factors such as where the employment is based, where directions and equipment are provided, and the employer’s principal place of business. Even where the substantive work is performed interstate, an employment relationship can still be sufficiently connected to Victoria.

Singh v Securecorp Protective Services Pty Ltd [2026] VSC 345

This case was previously discussed in our September 2025 newsletter. 

Recently, the Court of Appeal affirmed the Magistrates’ Court decision in all aspects. In short, the court affirmed the Henderson principle, (Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281), namely that for a worker to be successful they must be able to demonstrate that:

• the activity being performed at the time of their injury was incidental to their work; that is, it was being done as part of the work they were engaged to perform; or
• they were permitted, authorised, expected to do what they were doing at the time of the injury (in Singh, the use of the car park).

In Singh, the worker was travelling to work and had not yet commenced his employment duties at the time of the injury. Importantly, the employer did not own, control, or manage the car park where the incident occurred. As such, the employer could not be said to have permitted or authorised its use in any relevant sense. The worker had no greater right to use the car park than any member of the public. The employer’s conduct was limited to providing information about a parking option available to employees who chose to drive to work.

The same learnings as outlined in our newsletter apply.