Allens Arthur Robinson Corp Advisory Pty Ltd v Weavers - [2011] NSWWCCPD 71

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Allens Arthur Robinson Corp Advisory Pty Ltd v Weavers [2011] NSWWCCPD 71
APPELLANT:		Allens Arthur Robinson Corp Advisory Pty Ltd
RESPONDENT:		Sean Weavers
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-1819/11
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:		28 July 2011
DATE OF APPEAL DECISION:		13 December 2011
SUBJECT MATTER OF DECISION:		Worker residing overseas; failure to produce medical certificates; effect of failure to produce medical certificates; whether dispute exists; whether the Commission has jurisdiction to make orders under section 53 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	Walker Legal
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 28 July 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal as agreed or assessed.

INTRODUCTION

This appeal concerns whether the Commission has jurisdiction to determine a claim for weekly compensation in circumstances where the insurer has conceded injury and incapacity but has refused to pay weekly compensation because the worker now lives overseas and has been unable (through no fault of his own) to produce a medical certificate in accordance with a WorkCover NSW Operational Instruction.

BACKGROUND TO THE APPEAL

The appellant, Allens Arthur Robinson Corp Advisory Pty Ltd (Allens), employed the respondent worker, Sean Weavers, as a manager.
On 3 November 2006, Mr Weavers suffered an injury to his back when he slipped down stairs at Martin Place in Sydney. He has not worked since.
Allens accepted liability for the injury and commenced weekly payments.
On 7 March 2007, Mr Weavers submitted to a spinal decompression and discectomy.
On or about 23 September 2010, Mr Weavers took up residency in China, where his wife had accepted employment. After Mr Weavers left Australia, CGU stopped paying his weekly benefits. On 23 September 2010, Mr Weavers’s solicitors wrote to CGU demanding payment of weekly compensation from 23 September 2010, plus payment of his medical expenses. A similar demand was made on 23 December 2010.
Although payments of weekly compensation were terminated on 23 September 2010, contrary to its obligation under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), CGU failed to issue a notice to the worker providing reasons for its refusal to continue weekly payments of compensation.
On 5 October 2010, CGU wrote to Mr Weavers’s solicitors stating that, among other things, it had made payments of compensation up to 14 October 2010 and “will continue to the end of his WorkCover certificate whilst he is in China”.
On 8 October 2010, CGU wrote to the worker’s solicitors confirming their intention to make voluntary payments and seeking clarification regarding his dependants.
On 26 October 2010, the worker filed an Application to Resolve a Dispute in the Commission seeking weekly compensation from 27 November 2010 and continuing (matter no 8829/10) (the first application).
On 20 December 2010, the parties reached an agreement and the first application was discontinued. The terms of the agreement were not disclosed.
On 23 December 2010, Mr Weavers’s solicitors wrote to CGU on his behalf and claimed weekly compensation from 23 September 2010 and continuing and payment of medical expenses. Various medical certificates and reports from Dr Tang (dated 16 August 2010), Dr Green (dated 13 August 2010) and Dr Ly (dated 17 May 2010) were provided in support of the claim.
On 23 December 2010, CGU wrote to Mr Weavers stating that, in order to continue to receive weekly compensation, he was required to comply with all requirements of the workers compensation legislation, including the obligation to provide medical certificates.
On 12 January 2011, CGU wrote to Mr Weavers care of his solicitors. CGU accepted liability for Mr Weavers’s injury and stated it would continue to make voluntary payments “upon receipt of the medical certificates”. CGU advised Mr Weavers that, in order to continue to receive weekly compensation, he was required to provide WorkCover medical certificates or medical certificates that include the information normally provided on a WorkCover medical certificate from his doctor in China.
On 9 February 2011, Mr Weavers’s solicitors wrote to CGU and served a “NSW Workers Compensation Overseas Beneficiary Verification of Identity and Medical Examination Form” completed by Dr Dan Gui Yuan in China on 17 January 2011.
On 4 May 2011, Mr Weavers filed an Application to Resolve a Dispute in the Commission. He claimed weekly payments of compensation from 23 September 2010. He sought an order in the following terms:
“Currently residing in China and Additional Release sought: as the worker resides in China and continues to do so. He seeks a determination /Declaration that his incapacity is of a permanent nature and as a result of the injuries pleaded herein.”
He also sought an order for the payment of medical expenses, but that claim was not pursued. Although not specifically pleaded, there is no dispute that the Commission’s jurisdiction to make the declaration sought arises under s 53 of the Workers Compensation Act 1987 (the 1987 Act).
Mr Weavers has lodged a statement of evidence in these proceedings outlining the difficulties he has encountered in obtaining medical certification from doctors in China. He alleges that Chinese doctors are either prohibited from providing such certificates or are unwilling to do so and, despite his considerable efforts, he has been unable to acquire the relevant medical certification.
On 24 March 2011, Allens filed a Reply to the application. It identified the matter in dispute as:
“The applicant’s entitlement to weekly compensation was not disputed by CGU at any stage. CGU required the applicant to provide medical evidence in accordance with the WorkCover operational instructions. The applicant did provide a medical certificate from China received at CGU on 10 February 2011. CGU has paid weekly benefits for the period up to 27 February 2011. Upon receipt of ongoing medical certificates CGU will make payments of weekly benefits.”
The Commission listed the matter for conciliation and arbitration on 24 May 2011. The Arbitrator heard submissions from counsel for both parties. The issues for determination before the arbitrator were:
(a)     Whether there is a dispute between the parties;
(b)     Whether the respondent failed to determine the claim for weekly payments of compensation made by the applicant on 23 September 2010, and
(c)     Whether the Commission has jurisdiction to determine that the respondent pay the applicant weekly payments of compensation upon him ceasing to reside in Australia.
In a reserved decision delivered on 28 July 2011, the Arbitrator found in favour of Mr Weavers. He held that CGU’s withholding of weekly payments, in the absence of medical certification, constituted a dispute with respect to a claim for compensation, which provided the Commission with jurisdiction to determine the claim.
The Arbitrator held that Mr Weavers’s incapacity for work resulting from the injury to his back was of a permanent nature. He relied partly on a concession made by counsel for Allens at the arbitration hearing to that effect. He ordered the respondent to pay weekly payments of compensation from 23 September 2010 to date and continuing under s 37 of the 1987 Act.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can be decided solely on the documentary material.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

GROUNDS OF APPEAL

Allens has submitted that the Arbitrator erred in:
(a) determining that the appellant disputed liability in part to pay weekly payments of compensation to the respondent;
(b) misdirecting himself when he determined the Commission had jurisdiction to determine the worker’s claim under s 53 of the 1987 Act, and
(c) determining that the worker was entitled to weekly compensation despite a failure to provide medical certificates or other acceptable evidence in regard to his work capacity as requested by the appellant.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

The monetary thresholds in s 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

THE EVIDENCE

Permanent incapacity conceded

It is not disputed that Mr Weavers suffered injury to his back on 3 November 2006 when he slipped down stairs at Martin Place, striking the lower part of his back.
Mr Wynyard, counsel for Allens, conceded at the arbitration hearing that the worker’s incapacity was permanent. At T3.28, the Arbitrator said:
“I mean it's necessary for the Applicant to establish permanent incapacity and if there's an admission in relation to that by the Respondent well then I wouldn't need to hear any further evidence about it unless it [sic] can be taken to medical evidence in the form of medical certificates and reports which deals with the permanent incapacity question. If there's not then I would grant the Applicant leave on that point.”
After a short adjournment, while Mr Wynyard obtained instructions, he made the following admission at T4.35:
“MR WYNYARD: I have instructions to make those admissions and perhaps I should explain that the issue is not whether he's incapacitated, the issue is not—
ARBITRATOR: I was going to ask you what the issues were soon.
MR WYNYARD: —not whether he's got permanent incapacity, the issue is not whether he needs a section 60 so those matters are strictly speaking irrelevant but I'm prepared to – I've got instructions to admit those matters because they're not contentious and as I say, liability is not denied. But the business about the interpretation of the medical certificate I would object to.”

Mr Weavers’s evidence

On 31 March 2011, Mr Weavers prepared a signed statement of evidence in relation to his attempts to obtain a New South Wales WorkCover medical certificate or any medical certificate while residing in China.
Mr Weavers stated on 6 December 2010, after his legal representatives participated in a teleconference with CGU, that he was advised that he needed to provide a medical certificate signed by a doctor in China to receive weekly benefits.
From 8 December 2010 to 27 December 2010, Mr Weavers attended numerous doctors at hospitals in an attempt to get a doctor to sign a New South Wales WorkCover certificate or any medical certificate to state that he was unfit for work. He stated that doctors in China can only provide medical certificates if they are employed at hospitals. It was his understanding that doctors in China are not authorised to provide medical certification unless they are in the employ of a hospital. He stated that unauthorised medical certification in China can result in imprisonment.
Mr Weavers went on to state that, on some occasions, he and his mother-in-law, who is herself a doctor and who speaks Chinese, attended at the following hospitals in an attempt to locate a doctor who would provide the appropriate certification:
Ningbo Hua Ci Hospital
         Ningbo Bao Li Hospital
         Ningbo Emergency Treatment Hospital
         Ningbo Detention Hospital
         Beilun Foreign Medical Hospital
Ningbo No 2 Hospital
Mr Weavers stated that the doctors he approached either refused to see him or refused to sign the form. He stated that there are no general practitioners and, if you need to see a doctor in China, you are required to go to a hospital. Once at the hospital, Mr Weavers approached many doctors on duty, with the aid of an interpreter, but was unsuccessful in persuading any of them to certify his incapacity.
Mr Weavers said that, on 23 December 2010, he received correspondence from CGU requesting him to complete a document entitled “NSW Workers Compensation Overseas Beneficiary Verification of Identity and Medical Examination Form”.
Mr Weavers spoke to a Dr Middleton on 27 December 2010 and 24 January 2011, to request that he provide the medical certification requested. The doctor refused to make an appointment or to discuss the matter. Mr Weavers added that he re-attended the hospitals referred to at [35], again to attempt to persuade a doctor to complete the form provided to him by CGU.
Mr Weavers stated that, on 24 January 2011, a doctor in China (Dr Dan Gui Yuan) finally agreed to sign the form. He said:
“I am told that he only agreed to sign the form because the President of China was touring USA and the President Obama had just agreed to send over 300 doctors from America to China in an exchange program. The doctor thought that in the same spirit of cooperation he agreed to sign my overseas form. He signed a medical certificate on 17 January 2011.”
Mr Weavers stated that, although his mother-in-law is a Chinese doctor, she is not permitted to complete the forms. She did, however, assist him in approaching and discussing his needs with doctors at the various hospitals. Even with her contacts and assistance, he found the process very difficult. He added:
“I feel that I have done everything humanly possible to comply with the requests from the insurance company. Therefore, it is highly unlikely that I will be in a position to continue to get ongoing medical certificates in the future.”
Mr Weavers said that he instructed his solicitors to file an Application to Resolve a Dispute in the Commission on 2 March 2011. After the application was filed, on 22 March 2011, he received a payment from CGU. Although he initially was unsure what the payment was for, a letter followed on 29 March 2011, which clarified that the payment was in respect of weekly compensation from 27 November 2010 to 27 February 2011.
After contacting his solicitors, Mr Weavers was advised that no further payments would be made to him after 27 February 2011 until a further medical certificate signed by a doctor in China was provided.
Mr Weavers added that his back is deteriorating as the sporadic physiotherapy, acupuncture or massage treatment he requires has been denied to him due to the denial of liability.
No further medical certificates have been supplied by Mr Weavers and no further payments of compensation have been received since the payment on 22 March 2011.

Other evidence

On 2 March 2007, Dr Jeffrey Brennan, neurosurgeon, performed an L3/4 posterior spinal decompression, L3/4 discectomy, and decompression of the cauda equina.
On 20 April 2007, Dr Brennan reported to Dr Rosemary Aldous, Mr Weavers’s general practitioner, that, overall, Mr Weavers’s condition had improved after the surgery. However, he was not optimistic about the worker’s prospects of recovery. He had quite marked nerve compression at surgery, which Dr Brennan said would take some time to recover.
On 17 May 2007, Dr Ly performed an MRI of the worker’s lumbar spine. He concluded:
“1.Moderate sized to large L4/5 right posterior paracentral disc protrusion extending into the right L5 lateral recess resulting in probable impingement of the right L5 root. This is associated with degenerative disc bulge and dehydration and height loss, extending into the left neuro-foramen resulting in moderate to severe left foraminal stenosis. Mild L4/5 central canal stenosis.
2.Bilateral L5 pars defect resulting in Grade II spondylolisthesis of L5 on S1 with flattening of the bilateral L5 nerve roots within the tight neuro-foramina.
3.Status post left L3/4 laminectomy. Small posterior central L3/4 annular tear.”
On 31 May 2007, Dr Brennan noted that the worker had suffered a relapse of his lower back pain. He felt that the worker had suffered a progression of the L4/5 disc herniation.
On 8 November 2007, Dr Brennan reported that, in view of the continuation of symptoms, the worker may require an L5/S1 posterior lumbar interbody fusion.
On 28 February 2008, Dr Brennan reported to Dr Cormack that the best prospect of controlling the worker’s continuing low back pain involved a spinal reconstruction, with an L3 to S1 spinal fusion.
On 6 April 2010, Dr Matthew McDonald, neurosurgeon, prepared a report to CGU. He stated that the prognosis for Mr Weavers was uncertain. He was hopeful that the worker’s back pain could be improved with surgical intervention, but was uncertain whether symptoms of significant weakness in the left foot could be improved. Dr McDonald stated that it was possible that the worker had sustained permanent nerve damage that would not improve despite successful surgery. He stated:
“I am also hoping his back will be much more stable and this will help his function. He will need a significant period of rehabilitation and I am not certain that he will be able to return to his pre-injury duties.”
On 13 August 2010, Dr Green, the worker’s treating physician, stated:
“This letter is to advise that I have been treating Mr Weavers for approximately nine months for persistent lumbar and bilateral lower limb neuropathic pain.
The injury of 3 November 2006 caused considerable injury which ultimately necessitated an extensive lumbar fusion procedure at L4/5 and L5/S1.
This has resulted in permanent and residual impairment of the lumbar spine and lower limbs due to neurological impairment.
Mr Weavers continues to require supervision of a physical rehabilitation program as well as pharmacotherapeutic management of his pain which currently includes Oxcontin, Oxycodone, a Norspan patch (previously a Fentanyl patch) and Neurontin.
Should you require further information or clarification regarding Mr Weavers’ current medical condition of the lumbar spine please do not hesitate to contact me.”
On 16 August 2010, Dr Benny Tang, general practitioner of Glenelg East in South Australia, provided a medical certificate which stated:
“This is to certify that on 16 August 2010 I examined the abovenamed person. I have seen Sean from a professional capacity since April 2009 and his WorkCover back injury is considered a permanent disability.”

THE ARBITRATOR’S REASONS

The Arbitrator proceeded on the basis that CGU conceded that liability for Mr Weavers’s injury was not disputed, nor was it disputed that his incapacity for work resulting from the injury was of a permanent nature within the meaning of s 53 of the 1987 Act.
The dispute before the Arbitrator concerned, among other things, CGU’s submission that the Commission did not have jurisdiction to determine the claim because injury was not in dispute as it agreed that weekly payments of compensation would be made to the worker on a voluntary basis if he provided medical certificates certifying his incapacity for work. This approach was consistent with the correspondence from CGU of 23 December 2010 and 12 January 2011.
The relevant portion of the correspondence to Mr Weavers from CGU of 23 December 2010 was noted by the Arbitrator as follows:
“As you are out of Australia, in order to continue to receive weekly compensation being paid to you voluntarily by CGU, you are required to comply with all requirements of the Workers Compensation Legislation applicable to weekly compensation benefits. That includes your requirement to provide a WorkCover medical certificate or a medical certificate that includes the information normally provided on a WorkCover medical certificate from your doctor. We enclose a copy of the WorkCover NSW Operation Instruction 1.23 for your consideration.
You are also required to have your doctor complete and certify the verification of identity and medical examination form enclosed.
Please ensure you continue to comply with these requirements periodically (quarterly) in order to receive your ongoing weekly compensation payments. If you have any queries, please call us or write to us.”

The letter to Mr Weavers from CGU of 12 January 2011 is in the following terms:
“We have reviewed your claim by letter dated 23 December 2010 from Walker Legal, your solicitors. As advised by our letter of 23 December 2010 liability has been accepted for your injury and CGU does not dispute your entitlement to weekly compensation and medical expenses incurred in Australia. CGU has been paying you voluntary weekly compensation at the maximum statutory rate applicable to you subject to receipt of medical certificates in relation to your work capacity. CGU agrees to continue to pay voluntary weekly compensation at the maximum statutory rate applicable to you upon receipt of the medical certificates. We understand your wife is currently employed in China and therefore you are entitled to weekly benefits at the section 37 statutory rate for an injured worker with a dependent child which is currently $486.20 per week.
As advised by that letter, in order to continue to receive weekly compensation, please comply with the requirements of workers compensation legislation applicable to weekly benefits. You have to provide WorkCover medical certificate or medical certificates that include the information normally provided on a WorkCover medical certificate from your doctor in China in accordance with WorkCover NSW Operational Instruction 1.23. We note we forwarded a copy of the Operation Instructions under cover of letter dated 23 December 2010.
We have paid you weekly benefits until 26 November 2010 as we had your medical certificates covering up to 26 November 2010 [referring to the medical certificate of Dr Tang dated 16 August 2010 and enclosed with the letter of claim from Walker Legal dated 23 September 2010]. There are no medical certificates received from you thereafter. Please obtain the relevant medical certificates and forward it to us as soon as possible. In accordance with the WorkCover NSW Operation Instruction 1.23, CGU will also pay you appropriate medical expenses for treatment administered in Australia. We note all treatment expenses for treatment administered in Australia for which we have received receipts/tax invoices from you, have been paid. If not, please provide copies of the receipts or tax invoices to make the payments without further delay.
We look forward to hearing from you.”
After analysing the parties’ submissions, the relevant legislative provisions, and authorities, the Arbitrator concluded that CGU’s refusal to continue weekly benefits to the worker was based upon a reliance on ss 260 and 270 of the 1998 Act, the WorkCover Guidelines and Operational Instruction 1.23, dealing with weekly payments for workers residing outside Australia (Statement of Reasons (Reasons) at [54]).
The Arbitrator held at [56] of the Reasons, that a guideline does not imply a command or dictation. He cited Norbis v Norbis [1986] HCA 17; 161 CLR 513; 65 ALR 12, Riddell v Secretary, Department of Social Security [1993] FCA 261; 42 FCR 443; 114 ALR 340, and Smoker v Pharmacy Restructuring Authority [1994] FCA 1487; 53 FCR 287; 125 ALR 577, which make it clear that the normal meaning of “guideline” is “guidance and something that is not binding or mandatory in nature”. The Arbitrator cited Tan v National Australia Bank Ltd [2008] NSWCA 198 at [38] in support of the conclusion that the WorkCover Guidelines in respect of how a claim is to be made are not rules; they are for guidance only.
The Arbitrator concluded that the worker had made a valid claim for workers compensation payments in accordance with the provisions of s 260 of the 1998 Act, when his solicitors sent a letter of demand on 23 September 2010, enclosing a medical certificate from Dr Tang.
The Arbitrator concluded that s 270(1)(a) is a discretionary provision and that failure to provide a medical certificate when asked by the respondent was not disentitling conduct (Macrae v St Margaret’s Hospital [1999] NSWCA 381; 19 NSWCCR 1 (Macrae)).
The Arbitrator held that CGU’s letter of 23 December 2010 disputed liability for the claim because continuation of voluntary payments of weekly compensation was conditional upon Mr Weavers obtaining and providing a medical certificate to CGU quarterly while residing in China, in accordance with the operational instruction. That was, in the Arbitrator’s view, a “dispute in connection with a claim for compensation” (s 287(1) of the 1998 Act). He concluded that the finding was consistent with the beneficial nature of the workers compensation legislation. The dispute was in existence at the time the Application to Resolve a Dispute was filed with the Commission on 4 March 2011.
The Arbitrator held that, having found that CGU disputed liability in part in respect of the claim for payments of weekly compensation, the Commission could determine whether Mr Weavers’s incapacity for work resulting from the injury was likely to be of a permanent nature (s 53 of the 1987 Act).
The Arbitrator took into account the concession made by counsel for Allens at the arbitration hearing that Mr Weavers’s incapacity for work resulting from the injury to his back is of a permanent nature. He noted that the concession was a proper one, given the serious nature of the injury suffered by Mr Weavers to his lumbar spine, resulting in a spinal fusion. The Arbitrator accepted the opinion of Drs Brennan, McDonald and Tang. He concluded that Mr Weavers’s incapacity for work resulting from the injury to his back was of a permanent nature and made orders accordingly.

DISCUSSION

Statutory provisions

Section 53 of the 1987 Act provides:
“(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.
Section 270 of the 1998 Act provides:
“(1) An insurer who commences weekly payments of compensation under this Division may require the worker to provide the insurer with:
(a)a medical certificate certifying as to the worker’s incapacity for work, and
(b) a form of authority signed by the worker authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the worker in connection with the injury to give the insurer information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the injury.
(2) The insurer may discontinue weekly payments of compensation under this Division if the worker fails to comply with a requirement under this section within 7 days after it is communicated to the worker by the insurer.”
The reference to “this Division” in s 270 of the 1998 Act is a reference to Ch 7 Pt 3 Div 1, which deals with provisional liability. The division is entitled “SPECIAL PROVISIONS FOR COMMENCEMENT OF WEEKLY PAYMENTS AFTER INITIAL NOTIFICATION OF INJURY”. The division is concerned with, among other things, the insurers duty to commence weekly payments of compensation provisionally within seven days of notification of an injury (s 267), the insurer’s duty to notify the worker if it considers it has a reasonable excuse for not commencing weekly payments (s 268), the form of the notice to be given to workers to notify that payments will commence on the basis of provisional acceptance of liability (s 269), the cessation of the insurer’s liability to make provisional payments if liability is disputed (s 271), and various recovery provisions.
Section 274(1) of the 1998 Act provides:
“Within 21 days after a claim for weekly payments is made the person on whom the claim is made must determine the claim by:
(a)  accepting liability and commencing weekly payments, or
(b)  disputing liability.”
Section 74A of the 1998 Act, provides:
“(1)   An insurer who admits liability to pay compensation must pay that compensation promptly following the admission of liability.”
Section 289(1) of the 1998 Act provides:
“A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.”
The note to s 289(1) is in these terms:
“The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.”

WorkCover Guidelines

Clause 11 of Pt 1 of the WorkCover Guidelines for Claiming Compensation Benefits provides:
“If the insurer has commenced making weekly payments of compensation, the insurer is entitled to request the worker to provide a WorkCover medical certificate covering any period of incapacity for which payments have been or are to be made.
The request can be made to the worker or the worker’s representative in writing or verbally. If the request is made verbally then it must be confirmed in writing. When the insurer makes the request, it is to notify the worker:
·of the period of incapacity the WorkCover medical certificate is required to cover;
·that the worker must give the WorkCover medical certificate to the insurer within seven days after the request or within a period agreed by the insurer and the worker;
·that the weekly payments may be discontinued if the WorkCover medical certificate is not received by the insurer.”

Was there a dispute?

It is common ground that the worker suffered an injury to his lumbar spine on 3 November 2006. Liability was initially accepted and voluntary payments of weekly compensation were made. Payments were not made under Ch 7 Div 1 Pt 3 of the 1998 Act, which deals exclusively with provisional acceptance of liability for periods up to 12 weeks. There was no existing award by the Commission in respect of the worker’s entitlement to weekly compensation prior to these proceedings.
When the worker moved to China to join his wife, who had accepted employment there, he was advised by CGU to provide WorkCover medical certificates or medical certificates in a similar form to ensure that his voluntary weekly compensation continued.
CGU submits that it did not dispute the worker’s entitlement to weekly compensation. It submits that the Arbitrator was wrong to conclude that its letter to the worker of 23 December 2010 amounted to a partial dispute of the worker’s claim. To the contrary, CGU submits that that letter did not express any dispute, nor was it in the terms required by the legislation for a dispute, particularly s 74. It submits that it merely “informed him of his obligations under the workers compensation legislation” and asked him to provide ongoing medical certificates.
CGU submits that its letter of 12 January 2011 confirmed its position that liability for the injury was accepted and that it did not dispute the worker’s entitlement to weekly compensation, which it had agreed to pay on a voluntary basis subject to the receipt of appropriate medical certificates. It submits that the correspondence of 23 December 2010 and 12 January 2011, and all other correspondence from it to the worker did not indicate a denial of liability for weekly compensation.
CGU submits that, in Merriman v Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway [2006] NSWWCCPD 5 (Merriman), the insurer had served a letter on the worker’s solicitor asking the worker to be notified that, upon her leaving Australia, she would not be entitled to be paid compensation. The letter specifically stated, “The worker is not entitled to be paid compensation when she leaves Australia”. That amounted to an express dispute in regard to liability as found by Acting Deputy President Handley. It is submitted that the facts in the current matter are different to the facts in Merriman.
CGU further submits that the facts in the instant case are somewhat similar to the facts in Mthethwa v Buena Vista (Australia) Pty Ltd [2006] NSWWCCPD 18 (Mthethwa). In that matter, the insurer had accepted liability for injury and made compensation payments to Mr Mthethwa for a period until he left Australia. No payments were made after that time. In Mthethwa at [44], Deputy President Byron expressly concurred with the reasoning and analysis of Acting Deputy President Handley in Merriman. However, he found that the facts were different in a critical respect, as no indication of the dispute or potential dispute was given by the insurer prior to Mr Mthethwa leaving Australia. There had been no communication of an intention to cease making voluntary payments. The Deputy President upheld the Arbitrator’s determination that the Commission lacked jurisdiction, by virtue of s 289 of the 1998 Act, as there was no dispute on foot at the time the worker lodged the application in the Commission.
Mr Weavers submits that he made a valid claim for compensation in accordance with s 260 of the 1998 Act on 23 September 2010, when his solicitors wrote to CGU claiming weekly compensation and providing medical evidence in support of the claim. He submits further evidence in support of the claim was provided on 9 February 2011, when he supplied the completed “Overseas Beneficiary Verification of Identity and Medical Examination Form” as requested by CGU.
Mr Weavers further submits that CGU failed to determine the claim within the 21 days required by s 274(1)(a) of the 1998 Act, “having regard to the plethora of evidence previously and more recently provided”. He submits that CGU’s refusal to accept liability for continuing payments of weekly compensation amounted to a dispute within the terms of s 289(1).
In my view, the Arbitrator was correct to conclude that there was a dispute between the parties in connection with a claim for compensation at the time Mr Weavers lodged his Application to Resolve a Dispute. The Arbitrator correctly found at [62]–[64] that CGU’s letter to Mr Weavers on 23 December 2010 evidenced a dispute in relation to liability because its acceptance of liability for weekly compensation was made conditional upon Mr Weavers obtaining and providing medical certificates to CGU quarterly while residing in China.
I reject CGU’s submission that it did not deny liability. When it said to the worker on 23 December 2010, “Please ensure you continue to comply with these requirements periodically (quarterly) in order to receive your ongoing weekly compensation payments”, it was in substance informing him that his payments would cease if he failed to comply with their requirements, and that is precisely what happened. On 23 September 2010, when Mr Weavers failed to provide the certificates requested by CGU, it ceased further payments to him.
CGU appears to have accepted liability conditional upon certificates being provided, as required by the Operational Instruction. However, as Mr Weavers was not receiving compensation under an award, and as s 270 only applies to provisional weekly payments of compensation, CGU has no legal right to impose such a condition. The Operational Instructions do not have statutory force and are no more than an administrative direction. CGU disputed liability by imposing a condition it had no statutory power to impose.
An administrative direction has less weight than a guideline made under the legislation. It does not have statutory force and is no more than a guide or recommendation.
If, as CGU submits, it admitted liability, it was required to commence weekly payments of compensation to the worker promptly after the claim was accepted (s 74A of the 1998 Act). The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim (s 289(1) of the 1998 Act).
For these reasons, I reject Allens’s submission that the Arbitrator erred in concluding that the letter from CGU to Mr Weavers on 23 December 2010 amounted to a dispute.

Jurisdiction

CGU submitted that, to trigger the operation of s 53 of the 1987 Act, a worker must be in receipt of weekly payments of compensation under an award (Hickey v Ram Roofing Pty Ltd (1997) 15 NSWCCR 616 (Hickey). As there was no “relevant dispute” and because the worker was not in receipt of or entitled to receive weekly payments of compensation under an award, it argued the Commission had no jurisdiction to make a determination or declaration under s 53. It submitted that Merriman and Hickey held that s 53 does not apply to a worker receiving voluntary payment of weekly compensation.
Neither Merriman nor Hickey governs the situation in the present case. As I have already held that a dispute exists, the submission that the Commission has no jurisdiction is unsustainable. The Arbitrator correctly determined that the Commission had jurisdiction to determine the dispute, namely, to determine Mr Weavers’s entitlement to weekly compensation. Once he determined that a dispute existed and that Mr Weavers was entitled to an award, it follows that he was entitled to determine that Mr Weavers’s incapacity was of a permanent nature.

Did the Arbitrator err by determining the dispute in the absence of the medical certificates sought?

CGU submits that the Arbitrator erred in determining that s 270 of the 1998 Act applies in this matter. This is contrary to the submission CGU put to the Arbitrator when it asserted that s 270 (together with cl 11 Pt 1 of the Guidelines) provided the statutory basis for it to require the worker to provide medical certificates for any period of incapacity.
CGU submits on appeal that Ch 7 Div 1 Pt 3 of the 1998 Act (which includes s 270) applies only to provisional payments (s 267). The payment of provisional weekly payments of compensation is on the basis of the provisional acceptance of liability by the insurer for a period of up to 12 weeks.
I agree that s 270 only applies to provisional payments. It gives an insurer power to request a certificate where it has provisionally accepted liability. There is no equivalent power in a case where liability has been unconditionally accepted. As CGU had not accepted and was not paying Mr Weavers’s claim under Ch 7 Div 1 Pt 3, s 270 has no application.
Although it is not relevant to the determination of the appeal, given the Arbitrator’s findings about s 270 and the submissions on appeal, I make the following observations.
The Arbitrator held that, because of the use of the word “may” in s 270(1)(a), it is a discretionary provision and, as a result, a failure to provide a medical certificate requested by an insurer will not disentitle a worker to compensation (Macrae).
The Arbitrator erred in his approach to s 270. The section gives the insurer who commences provisional weekly payments of compensation under Div 1 of Pt 3 the power at its discretion to request a worker to provide a medical certificate certifying as to the worker’s incapacity. The discretion to request the medical certificate rests with the insurer. If a worker fails to comply with a requirement under s 270, the insurer may discontinue weekly payments of compensation under Ch 7 Div 1 Pt 3. However, as I have already noted, Mr Weavers’s payments did not come under Ch 7 Div 1 Pt 3.
CGU submits that s 260 of the 1998 Act provides a power for guidelines to be made by the WorkCover Authority with respect to the form, manner and means by which a claim is to be made, the information the claim is to contain and any specific documentation or other materials that are required to accompany it.

CGU submits that, in consideration of the WorkCover Guidelines, the worker’s obligation to submit a medical certificate at the insurer’s request is a mandatory obligation. Mr Weavers’s counsel did not address this submission.
It is correct, as CGU has submitted, that an insurer is entitled to stop voluntary payments of weekly compensation if a worker has failed to comply with a request under cl 11 of the Guideline to provide a medical certificate. However, the failure to provide a medical certificate does not deprive the Commission of jurisdiction to determine the dispute (Tan v National Australia Bank [2008] NSWCA 198 (Tan). Once the dispute is determined by the Commission, cl 11 of the Guideline has no effect and the legislation must be applied. Section 56 of the 1987 Act gives the Commission power, at its discretion, to make it a condition of any award that the worker supply to the employer or other specified person from time to time medical certificates relating to the incapacity for work to which the award relates. The Arbitrator made no order under s 56.
In the case of a worker who has ceased to reside in Australia and who is receiving or is entitled to receive weekly compensation under an award, s 53(2) of the 1987 Act provides that, if the incapacity is certified or determined to be of a permanent nature (as is now the case for Mr Weavers), the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, “in such manner and at such intervals as the Authority may require, [emphasis added] the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable”. The reference to “the Authority” is a reference to the WorkCover Authority of NSW.
It follows that, once Mr Weavers failed to provide medical certificates, the insurer was entitled to discontinue payments of weekly compensation. That triggered the dispute that the Commission has now determined in favour of Mr Weavers and led to the orders made under s 53 of the 1987 Act.
WorkCover is now entitled in its discretion under s 53(2) to require Mr Weavers to establish his identity and “continuance of the incapacity in respect of which the weekly payment is payable”. Given the evidence from Mr Weavers that it is virtually impossible for him to obtain medical certificates in China, it is obvious that the same difficulties that triggered this dispute will occur again if he is required to provide medical certificates under s 53(2) of the 1987 Act. A failure to provide medical certificates may result in further delays and unnecessary expensive litigation in a case where the insurer has conceded, and the Commission has held, that the worker’s incapacity is of a permanent nature. The statutory obligation of providing a fair and cost effective system for the resolution of disputes (s 367 of the 1998 Act) will be seriously frustrated if Workcover does not exercise its discretion in s 53(2) in the unusual circumstances of this case.
This case is exceptional and should not be interpreted as condoning deliberate non-compliance with the Guidelines or Operational Instructions. In the usual case, workers will be able to obtain medical certificates and they should do so.

CONCLUSION

When the worker left Australia to take up residence in China, he was being paid weekly payments of compensation voluntarily by the insurer. Because those payments were not being paid pursuant to an award, s 53(1) of the 1987 Act was not engaged, and the insurer was not entitled to cease making payments to the worker upon his ceasing to reside in Australia.
Under cl 11 of the Guidelines, the insurer required ongoing medical certification as to incapacity, which the worker was unable to procure from doctors in China. This resulted in a finding by the Arbitrator that there was a dispute in relation to the worker’s entitlement to an order for weekly payments, which the Commission has jurisdiction to determine.
In view of the employer’s concession that the worker remained permanently incapacitated, the Arbitrator’s finding of permanent incapacity does not demonstrate any error.

DECISION

The Arbitrator’s determination of 28 July 2011 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal as agreed or assessed.

Judge Keating

President
13 December 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE