Sparke Compensation Quarterly - Issue 6

Welcome to the sixth edition of Sparke Compensation Quarterly.   In this edition:

Commonwealth: the Administrative Review Tribunal’s new online portal is scheduled to launch on 12 November 2026, and we review an ART decision denying further back surgery because the medical evidence did not support a reasonable prospect of improvement from additional surgical intervention.

New South Wales: we examine how reforms beginning 1 October 2026 are likely to influence both treatment approval decisions and settlement strategies across the NSW scheme.  We also review a NSW District Court decision highlighting the need for targeted safety measures in workplaces with a known history of aggressive customer behaviour.

Victoria: we look at a recent VCAT decision that allows a discrimination claim to proceed despite the applicant signing a WorkCover settlement release.

Queensland: we review proposed legislative reforms that are set to reshape the assessment of psychological injury claims and expand insurers’ powers to combat workers’ compensation fraud.

South Australia: the SAET confirmed that conciliation costs caps prescribed by regulation 44 of the Return to Work Regulations 2015 (SA) are GST-inclusive, meaning GST cannot be claimed in addition to the maximum recoverable costs.

Australian Capital Territory: a Supreme Court decision highlights the importance of proving both causation and a sufficient connection between alleged misconduct and employment before an employer can be held liable for a worker's injuries.

Western Australia: we examine a recent WorkCover WA decision confirming that settlement deeds and court consent orders do not prevent recovery proceedings where credible evidence of fraud, misrepresentation or non-disclosure later emerge.

Northern Territory: we look at a recent NT Supreme Court decision that serves as a reminder that courts will not allow proceedings to become broad inquiries into every perceived wrongdoing, particularly where allegations are irrelevant to the issues for determination or lack proper particulars.

Commonwealth Compensation

Further surgery found not to meet s16 requirements of the SRC Act

The Administrative Review Tribunal has affirmed a decision denying a claim for further lower back surgery.  The Applicant had undergone bilateral L4-S1 decompression, laminectomy and neurolysis on 13 December 2019 but did not appear to have any real improvement.  He underwent an L4-S1 posterolateral fusion on 27 November 2020 and neurolysis.  Again, the Applicant reported significant and ongoing pain after this surgery. 

The Tribunal accepted the opinions of A/Prof McGill and Dr Khurana over those of the Applicant’s treatment providers and found them both to be impressive witnesses in response to allegations of bias raised against them by the Applicant. Relevant to the Tribunal’s deliberations [at 108] was a lack of benefit from two previous back surgeries, no nerve compression that needed correcting, no objective or radiological basis for the Applicant’s reported levels of pain and restriction, the existence of non-organic pain behaviours from the Applicant and no change of improvement being achieves through further surgical intervention.

Wicks and Australian Air Express Pty Ltd (Compensation) [2026] ARTA 1820 (27 August 2026)

ART processes are changing

The Tribunal’s new online portal is scheduled to launch on 12 November 2026 and will begin managing workers’ compensation and veterans’ matters in its new case management system. The way that decision-making agencies will communicate with the Tribunal to identify matters and provide documents will depend on when the application was lodged.

How processes will differ from 12 November 2026

New South Wales

Changes to the NSW workers’ compensation scheme – effective 1 October 2026

Following the significant legislative amendments to the Workers Compensation Act 1987 (NSW), further changes to the scheme commenced on 1 October 2026. The reforms introduce a higher threshold for treatment expenses under section 60 and expand access to commutation agreements.

Increased threshold for treatment requests

Previously, liability for treatment expenses depended on whether the treatment was considered 'reasonably necessary' for the worker’s recovery. The test has now changed to 'reasonable and necessary', introducing a higher, two-pronged threshold. This requires employers/insurers to assess treatment claims with a stronger focus on evidence-based purposeful recovery.

Under this new framework, reasonable and necessary treatment claims must:

• primarily treat the claimed workplace injury
• be clinically justified and supported by a medical practitioner, and
• be cost-effective and reflect value for money.

In practice, the higher threshold is likely to reduce employer and insurer liability for certain treatment expenses.

The regulations also specifically exclude a number of treatments from employer liability including: alternative therapies, wellness coaching, massage therapies, energy healing practices, some medications (primarily holistic in nature), and costs associated with companion animals (excluding service animals).

These changes apply to all workers, including exempt workers. However, they do not apply to dust disease claims, which continue to rely upon the former “reasonably necessary” test. 

Increased access to commutation agreements

The reforms also broaden access to commutations, allowing more injured workers to resolve future compensation entitlements through a lump sum settlement. The new regulations create three classes of eligible claims:

1. Workers entitled to weekly payments and medical expenses
2. Workers only entitled to medical expenses
3. Workers entitled to compensation for hearing loss and related medical expenses.

The expanded access arrangements are temporary and will operate from 1 October 2026 until April 2028. Workers injured before 1 January 2023 may be eligible to seek a commutation under the expanded framework.

The reforms also introduce mandatory advice requirements. Every worker applying for a commutation must obtain independent legal advice. Where the commutation exceeds $100,000, the worker must also obtain independent financial advice, with insurers able to contribute up to $2,500 towards the cost of that advice.

All commutations entered into after 1 October 2026 require approval from the Personal Injury Commission (PIC). The PIC has issued Procedural Direction WC8 – Commutations.  Applications must be accompanied by evidence demonstrating compliance with the relevant legislative and regulatory requirements. Once a commutation agreement is approved and finalised, the worker surrenders any further entitlement to ongoing compensation or medical expenses for that specific, work-related injury.

Irrespective of the 1 October 2026 changes, these agreements remain unavailable for coal miners, dust diseases claims, volunteers or medical expenses related to catastrophic injuries. 

For full details, see the SIRA website via the Workers Compensation Information Hub

Court highlights employer duties in high-risk locations

Facts

• On 22 November 2019, whilst working at the defendant’s Vodafone store in Campbelltown Macarthur Square (‘the Macarthur store’), the plaintiff interacted with a male customer who became hostile and verbally abusive towards him.
• Several hours later, the customer returned and confronted the plaintiff in a similarly hostile and abusive manner before producing a deodorant can and cigarette lighter. The deodorant can was sprayed and its contents ignited in the direction of the plaintiff’s head. The plaintiff sustained superficial injuries to his arm and head as well as a significant psychiatric injury.
• The plaintiff commenced a claim for negligence against the employer.

Issues for determination

1. Whether the plaintiff’s injuries resulted from the negligence of the defendant.
2. The extent of the plaintiff’s entitlement to future economic loss arising from the injury.

Decision

1. Verdict and judgement for the plaintiff against the defendant in the sum of $1,028,063.54.
2. The defendant is to pay the plaintiff’s costs as agreed or assessed.

Summary of reasoning

• His Honour agreed that the McArthur store was an outlier within the national Vodaphone network due to the frequency and nature of customer aggression. The defendant was clearly aware of this elevated risk, as demonstrated by the volume of prior incident reports.
• His Honour was satisfied that the defendant failed to take reasonable care to avoid the foreseeable risk of injury to the plaintiff. Particular reference was placed on the decision to roster a security guard only on Fridays, when a broader security presence was considered a reasonable precaution. His Honour was satisfied that a reasonable employer in the defendant’s position would have foreseen the risk of physical and psychological injury arising from interactions with aggressive customers at the Macarthur store. This conclusion was supported by evidence of previous incidents and deficiencies in the training provided to staff.

Key takeaways

• Employers should assess workplace risks on a site-by-site basis. Generic policies and procedures may not be sufficient where a particular location has a known history of customer aggression or violence.
• Foreseeability can be site-specific. While a security guard may not be necessary at every site, they may be a reasonable precaution where there is evidence of repeated incidents or elevated risk.  
• Implementation of training/safety systems does not automatically satisfy that reasonable precautions had been taken. Training should be practical and tailored to the work environment, particularly where employees regularly interact with members of the public. Scenario-based training may assist workers to identify and respond to escalating situations.
• Employers in customer-facing industries should be aware of the risk of injury posed by the potential criminal conduct of third parties and implement appropriate controls to minimise that risk. This case is a reminder that employers may be liable where such risks are foreseeable and reasonable preventative measures have not been taken.

 Lepan v TPG Telecom Limited [2026] NSWDC 328 (11 September 2026)

Victoria

WorkCover settlement does not end all claims: the importance of carefully drafted releases

Despite executing a deed of release to resolve her WorkCover claim, the Victorian Civil and Administrative Review Tribunal (VCAT) has agreed that a separate application lodged by an employee concerning alleged workplace sexual harassment and discrimination can proceed. The matter concerned an application under s 75(1)(b) of the ictorian CVivil and Administrative Review Act (Vic) (VCAT Act) by the respondents to strike out or summarily dismiss an application under the Equal Opportunity Act 2010 (Vic) (EO Act).

In October 2021, the applicant, commenced a proceeding in the County Court of Victoria against the first respondent under the Workplace Injury Rehabilitation and Compensation Act (Vic) (WIRC Act). At the same time, she commenced proceedings in VCAT under the EO Act alleging workplace sexual harassment and discrimination. The harassment allegations arose from an alleged sexual assault and rape in the workplace. The discrimination allegations concerned alleged unfavourable treatment by the second respondent because the applicant was pregnant and later terminated that pregnancy.

On 20 January 2026, the applicant executed a deed of release (Release) settling the WIRC Act proceedings. The respondents argued that the signing of the Release resolved both the WIRC Act and EO Act claims. They characterised the EO Act proceeding as involving ‘the ”carve out” of a residual claim that would be artificial, unfair and require a ridiculously tortuous reading.’ Referring to the High Court’s decision in Grant v John Grant & Sons Pty Ltd,[1] the respondents submitted that ‘there is a settled line of authority that wide, general words of a release and indemnity should be confined to only specific subject matter.’

The respondents further submitted that allowing the EO Act proceeding to continue would amount to an abuse of process and that it therefore should be struck out or summarily dismissed under the VCAT Act. The applicant argued the Release did not extinguish her statutory rights under the EO Act. She contended that the wording of the Release was clear, being confined to matters arising under the WIRC Act, and that it contained ‘no explicit mention of the EO Act’.

Tribunal Member Michael Bevan agreed with the applicant that the phrasing of the Release suggested it was confined to claims under the WIRC Act and associated common law claims. Member Bevan accepted that the EO Act claim was not a common law claim, but rather a separate statutory claim. He also considered that the failure to expressly include statutory claims arising from the relevant events supported the conclusion that the Release was intended to resolve the WIRC Act claim only.

Notably, the second respondent named in the EO Act proceeding was not included in the Release, even though he had been a party to the EO Act claim when the Release was executed.  Member Bevan concluded that this indicated ‘the applicant probably wasn’t intending the release to prevent continuation of the EO Act proceeding.’

Ultimately, Member Bevan was not satisfied that the respondents had overcome the burden of proving that the proceeding should be summarily dismissed under section 75(1)(b) of the VCAT Act.  The application was dismissed, with the hearing of the substantive EO Act proceeding remaining listed for hearing on 13 October 2026.

The decision is a timely reminder to draft settlement releases carefully. If the intention is to resolve separate statutory or other claims arising from the same circumstances, the release should contain clear and express wording to that effect.

Tria v Newdimension Australia Pty Ltd as Trustee for Kotekar Family Trust [2026] VCAT 777 (21 September 2026)

[1] (1954) 91 CLR 112; [1954] HCA 23.

Queensland

Upcoming Workers’ Compensation Amendments

The Queensland Government has introduced the Industrial Relations and Other Legislation Amendment Bill 2026 (the Bill) following an independent review of the workers' compensation scheme. The proposed reforms focus on psychological injury claims, fraud prevention and several administrative changes.

Psychological injury claims

A key proposed change is to the definition of a compensable psychological injury under the Workers’ Compensation and Rehabilitation Act 2003. The Bill would require employment to be the major significant contributing factor to a psychological injury, replacing the current test that employment be a significant contributing factor.

The Bill would also clarify the operation of the reasonable management action defence. In particular, action taken to investigate alleged misconduct may constitute reasonable management action if conducted reasonably. The amendments further confirm that management action will not be considered unreasonable merely because of a minor error or omission when viewed in the context of the overall process. These changes are intended to provide greater certainty in the assessment of psychological injury claims and may reduce the number of claims accepted by insurers.

Fraud prevention measures

The Bill introduces new powers aimed at detecting and deterring workers' compensation fraud. Most notably, workers receiving compensation would be required to provide monthly declarations confirming whether they have returned to work or engaged in other employment. Insurers would be able to suspend entitlements where those declarations are not provided without reasonable excuse. The reforms also propose increased penalties for fraud-related offences and additional powers to suspend compensation entitlements during fraud investigations.

The Government has also indicated its support for discussions with the Attorney-General and Minister for Justice to include convictions for workers’ compensation fraud on National Police Certificates, a change that would afford greater transparency for employers.

Other changes

The Bill would also reintroduce a mechanism allowing prospective employers, with the worker's written consent, to obtain a summary of that worker's claims history.

The Queensland Government has also accepted recommendations for further review regarding compensation modernisation, return to work and rehabilitation practices, and permanent impairment assessment guidelines.

What's next?

The Bill was introduced to Parliament on 14 October 2026 and referred to the State Development, Infrastructure and Works Committee. Submissions remain open until 2 November, and the Committee’s report is due by 27 November 2026. If passed, the reforms are expected to have a significant impact on the management of psychological injury claims and fraud prevention across the Queensland workers' compensation scheme. We expect to provide an update following the release of the Committee’s report.

South Australia

SAET confirms GST cannot be added to regulated conciliation costs

The recently published decision in Thiele v Return to Work Corporation of South Australia [2026] SAET 123 (Thiele) clarifies whether GST may be claimed in addition to the maximum regulated costs recoverable for preparing and lodging an Application for Review and for participation in conciliation proceedings before the South Australian Employment Tribunal (SAET).

Section 106 of the Return to Work Act 2014 (SA) (RTW Act) establishes a scheme under which applicants, whether injured workers or employers, may recover legal costs associated with a dispute before the SAET, subject to certain limits and conditions.

The majority of disputes before the SAET are resolved during the conciliation phase. Consequently, the operation of the statutory costs cap at that stage has significant practical implications for both applicants and compensating authorities. Recoverable costs are limited by s 106(1) of the RTW Act and regulation 44 of the Return to Work Regulations 2015 (SA) (RTW Regs). For disputes commenced in 2026, the current prescribed rates are:

• Assistance in the preparation and lodgement of an application to the Tribunal: $550
• Participation in proceedings up to and including a compulsory conciliation conference (including the preparation of any necessary documentation): $1,020 to a maximum of $3,371.

In Thiele, it was agreed that the applicant was entitled to the maximum recoverable costs under reg 44 of the RTW Regs, being $3,806. The dispute concerned whether GST could be claimed in addition to that amount.  The applicant accordingly sought $4,186 in legal costs.

The applicant argued that GST should be recoverable in addition to the prescribed costs cap. He submitted that s 106(6) of the RTW Act links recoverable conciliation costs to the Supreme Court scale of costs, which, through the Uniform Civil Rules, permits GST to be added where no input tax credit is available. On that basis, GST should also be added to the costs prescribed by reg 44.  The applicant further argued that s 53 of the South Australian Employment Tribunal Act 2014 empowered the Tribunal to compensate a party for 'expenses or loss', which included any GST liability.

The Corporation argued that reg 44 imposes a statutory cap on recoverable costs that cannot be exceeded.

A significant factor in the Tribunal's reasoning was the legislative history of the costs provisions. The Tribunal noted that when GST was introduced in 2000, Parliament increased the relevant conciliation costs maxima by 10%, rather than permitting GST to be claimed in addition to those amounts. The Tribunal considered this to be a strong indication of a legislative intention that the prescribed maxima be GST-inclusive. That intention had subsequently been preserved through ongoing CPI indexation of the capped amounts.

The Tribunal also rejected the applicant’s reliance on s 53 of the South Australian Employment Tribunal Act 2014, finding that a GST liability was not an 'expense or loss' of the kind contemplated by that provision. The Tribunal therefore held that the reg 44 costs maxima already include any GST payable and that allowing GST to be claimed in addition would exceed the statutory cap established by the Regulations. The application was therefore dismissed.

Although many compensating authorities have long treated the reg 44 maxima as GST-inclusive, Thiele provides welcome judicial confirmation of that approach. Given the large number of matters resolved at conciliation, a contrary finding could have materially increased the costs exposure of compensating authorities across the scheme.

As at the date of publication, the time for instituting an appeal has not expired. It remains to be seen whether the decision will be challenged on appeal. We will provide a further update if an appeal is lodged.

Australian Capital Territory

Court finds insufficient link between alleged conduct and employment

In Rosemary Manning (a pseudonym) v Edson Group Pty Ltd (in liq) [2026] ACTSC 385, the plaintiff alleged that, in the course of her employment with the defendant, she was sexually harassed by the defendant’s sole director (who was not sued personally). She also alleged she was sexually assaulted by the defendant’s director after a work Christmas party in December 2020. She alleged that this occurred in the course of her employment and, alternatively, within an overall episode of work. The plaintiff claimed personal injury damages totalling $1,111,503 plus costs.

Justice McWilliam accepted that, at an early stage of the plaintiff’s employment, the defendant’s sole director engaged in conduct that was likely to have constituted sexual harassment, but that conduct did not cause any injury suffered by the plaintiff. In summary, the plaintiff failed to establish the following:

• that any injury suffered by her was due to the defendant’s failure to provide her with a safe system of work regarding the alleged sexual harassment, and
• the facts required to establish sexual harassment that caused her injuries and to connect what occurred to the defendant.

Further, Her Honour did not accept that any conduct that might have constituted sexual assault occurred in the course of the plaintiff’s employment or was connected to the defendant or its business. The plaintiff failed to establish a link between the alleged conduct following the Christmas party in December 2020 and her employment with the defendant that was sufficient to make the defendant liable for any of the director’s behaviour that aggravated a pre-existing injury or caused an injury.

The Australian Capital Territory Supreme Court dismissed the plaintiff’s claims and verdict was entered for the defendant.

Rosemary Manning (a pseudonym) v Edson Group Pty Ltd (in liq) - ACT Supreme Court

Western Australia

Settlement deed not a complete defence to recovery proceedings

A worker claimed compensation for a psychological injury allegedly sustained on 10 July 2020 as a result of bullying and harassment in the director’s office while undertaking her normal duties at her desk as a second-in-charge childcare worker. Liability for the claim was accepted on 22 November 2020.

On 11 November 2021, the worker and the employer/insurer entered into a settlement deed to resolve the worker’s compensation claim, including her common law claim. On 25 November 2021, the District Court of Western Australia made Memorandum of Consent Orders dismissing the common law claim, with no orders as to costs.

Following the settlement, the insurer received information from the worker’s former husband during family law proceedings. He alleged that the worker’s diagnosis and condition were caused by family violence rather than any workplace injury. He further alleged that the worker held a second job and received additional income during the period she was receiving income compensation, which was not disclosed to the employer or insurer. It was also alleged that the worker colluded with her psychologist to misrepresent her condition.

The employer/insurer applied to WorkCover WA for the recovery of the compensation paid to the worker pursuant to s 146 of the Workers Compensation and Injury Management Act 2023 (WA) and s 176 of the Workers' Compensation and Injury Management Act 1981 (WA).

The Arbitrator determined that the employer’s application should not be summarily dismissed based on the settlement deed, which had not been disapproved, or the District Court consent orders.

Key takeaways

The decision highlights that settlement deeds and consent orders may not provide a complete defence to recovery proceedings where statutory rights remain available. For employers and insurers, it reinforces the importance of investigating credible evidence of fraud, misrepresentation or non-disclosure, even after a claim has been settled. The outcome may have broader implications for future recovery actions and confirms that such claims will not necessarily be defeated at a preliminary stage merely because a settlement has been reached.

Northern Territory

NT WorkSafe safety alerts and the NT no-fault scheme

On 4 September 2026, NT WorkSafe issued a safety alert after a civil construction worker at a Palmerston worksite lost his thumb when an improvised lifting system was used to move a road trench plate using an excavator dipper arm.

On 23 October 2026, NT WorkSafe issued a further safety alert following two incidents in which workers suffered burn injuries while using power tools near live electrical equipment.

These incidents serve as a timely reminder that the Northern Territory workers’ compensation scheme does not permit employees to bring common law negligence claims against their employers. It is a “no fault” workers compensation scheme providing for statutory benefits.

Subject to limited exceptions, a work injury may be compensable even where a worker has acted contrary to a regulation or without the employer’s instructions. Compensation will generally only be excluded where the injury was deliberately self-inflicted, or in certain circumstances, resulted from the worker’s serious and wilful misconduct.

Keeping claims focused: NT Supreme Court strikes out irrelevant allegations

In Issue 5 of Sparke Compensation Quarterly, 30 July 2026, NT section, we referred to Slade v CGH Group Pty Ltd, where the NT Supreme Court considered whether a psychological injury may be compensable where it arises from a worker's genuine perception of danger, contamination or injury stemming from a real workplace event, even if the perception later proves mistaken. This matter related to a dispute under the (NT) Return to Work Act between Mr Slade against his employer.

In Slade v Energy Resources of Australia Ltd decided 2 September 2026, the Supreme Court considered Mr Slade’s (self-represented) Statement of Claim raising a common law negligence claim against the mine operator, ERA. The September 2026 decision, related to the same factual circumstances, was a pleading strike-out application, not a determination of liability.

In his Statement of Claim, Mr Slade appeared to regard the workplace incident, the workers compensation proceedings, the conduct of his former lawyers, alleged document concealment, alleged fraud and alleged regulatory failures as part of a single overarching grievance. The Court held many of these matters were separate matters not relevant to a claim for negligence. Accordingly, several paragraphs of the Statement of Claim were struck out because they were irrelevant to the pleaded negligence case or were not properly particularised.

Smyth AsJ quoted from the Federal Court’s decision in Manolakis v Carter, 'Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private “Royal Commissions”. Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.'

Slade v ERA illustrates resources must be spent addressing allegations that may ultimately have no bearing on the legal questions to be determined.

While courts afford self-represented litigant’s procedural fairness, they consistently emphasise proceedings must remain focused on properly pleaded causes of action supported by material facts, not grievances, suspicions or attempts to conduct a private inquiry into every perceived wrong.