Allianz Australia Ltd v Bakalis - [2003] WASCA 116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: ALLIANZ AUSTRALIA LTD & ANOR -v- BAKALIS [2003] WASCA 116

CORAM: ANDERSON J
TEMPLEMAN J
MCLURE J

HEARD: 15 APRIL 2003

DELIVERED : 12 JUNE 2003

FILE NO/S: FUL 28 of 2002

MATTER :Section 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA)

BETWEEN: ALLIANZ AUSTRALIA LTD
First Appellant (First Respondent)
SPARROW ENTERPRISES PTY LTD T/as WESTERN ASSESSORS
Second Appellant (Second Respondent)
AND
VASILIOS ANDREW BAKALIS
Respondent (Appellant)

Catchwords:

Workers' compensation - Requirement to submit to medical examination - Worker submitting on condition that no report be made by doctor - Whether refusal to submit - Notice by insurer failing to specify time and date of medical appointment - Effectiveness of notice

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 64, s 65, s 70, s 84N, s 84Y

Workmens' Compensation Act 1906 (UK)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

First Appellant (First Respondent)         :        Mr J R Ludlow
Second Appellant (Second Respondent)   :        Mr J R Ludlow
Respondent (Appellant)  :        No appearance

Solicitors:

First Appellant (First Respondent) : McAuliffe Williams
& Partners

Second Appellant (Second Respondent) : McAuliffe Williams
& Partners

Respondent (Appellant) : No appearance

Case(s) referred to in judgment(s):

Breen v Williams (1996) 186 CLR 71
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552

Case(s) also cited:

Buck v Comcare (1996) 66 FCR 359
Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410
Devitt v Owners of Steamship Bainbridge [1909] 2 KB 802
Godinovich v S & L Salvage CM 13/95, 10 April 1995
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Hope v Bathurst City Council (1980) 144 CLR 1
Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427
Morgan v William Dixon Ltd [1912] AC 74
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
United Construction Pty Ltd v Gajic CM 50/94, 19 September 1994
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

ANDERSON J: This is an appeal by leave against orders made by the Compensation Magistrate's Court on 16 August 2001 quashing the determination of a review officer to the effect that a worker's right to compensation had ceased by operation of s 64 of the Workers' Compensation and Rehabilitation Act 1981. That section is in the following terms:
"64.Medical Examination
(1)Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so.
(2)…"
When this appeal was called on Mr Ludlow announced his appearance for both appellants but there was no appearance by or on behalf of the respondent, Mr Bakalis. The Court was taken to affidavits of service and in the light of these affidavits the Court was satisfied that the rules of court as to service of the appeal documents and notice of hearing had been fully complied with and there was no reason why the appeal should not proceed in the absence of Mr Bakalis.
On 5 November 1999 Mr Bakalis initiated proceedings under s 84N of the Act to recover workers' compensation from V A Bakalis Pty Ltd, now called The Blue House 2000 Pty Ltd. This he did by filing with the Director of Conciliation and Review an "application referring dispute for conciliation" in which the question which was stated for determination was whether Mr Bakalis was entitled to be paid workers' compensation. The first appellant, Allianz Australia Ltd, is the workers' compensation insurer of The Blue House 2000 Pty Ltd. The conciliation was unsuccessful. On 20 December 1999 Mr Bakalis sought to have conciliated the question whether he was entitled to be paid compensation by another employer, Sparrow Enterprises Pty Ltd trading as Western Assessors. This company is the second appellant. I think we must take it that this conciliation was also unsuccessful. The two applications were brought together within the Conciliation Review Directorate and were treated as a single application for the purposes of referral to a review officer under s 84Y of the Act. The referral proceeded to a preliminary review on 31 March 2000 but Mr Bakalis' solicitors failed to attend and the review was adjourned. Later that same day the appellants' solicitors sent a letter to Mr Bakalis' solicitors by facsimile transmission inter alia in the following terms:
"For the record, we give you notice that we consider that the discussions at the informal conference held on 15 February 2000 included a statement by our client that it required your client, under section 64 of the Act, to submit himself for examination by a number of medical practitioners provided and paid by our client… We note that we have not heard from you or your client as to whether your client is willing to submit himself for any such examination.
In the circumstances, we once again give you notice, this time formally in writing, that our client requires your client, under section 64 of the Act, to submit himself for examination by the three medical practitioners named in our letter dated 10 March 2000. In view of the manner in which your client's application has proceeded thus far, we do not propose to make any appointments for your client to see these medical practitioners until your client has indicated that he is willing to submit himself for examination by the medical practitioners.
If we do not receive any response to this facsimile by close of business on Thursday, 6 April 2000, we will assume that your client has refused to submit himself to examination.
…"
The three medical practitioners referred to had been identified in earlier correspondence as Dr Oleh Kay, Dr Hans Stampfer and Dr David Lord.
The disability upon which Mr Bakalis based his claim for workers' compensation was a stress disorder said to have been contracted by him in the course of his employment as a loss assessor. Each of the three doctors are psychiatrists. Dr Stampfer has dropped out of the picture because the appellants expressly or tacitly withdrew their s 64 request in respect to him. We can take it however that the appellants have always required that Mr Bakalis should submit himself for examination by Dr Kay and by Dr Lord.
Mr Bakalis never submitted himself for examination by Dr Kay. He did attend on Dr Lord but told Dr Lord, in effect, that Dr Lord did not have his authority to provide a report to the appellants. The appellants took the position as regards both Dr Kay and Dr Lord that Mr Bakalis had refused without reasonable excuse to submit himself for their examination or at least had obstructed their examination, with the consequence that the appellants were entitled to the benefit of the sanctions provided for in s 64 - suspension and ultimate cessation of Mr Bakalis' right to claim compensation. Mr Bakalis took the position that he had not received a valid notice under s 64 so that the sanctions for failure to comply with such a notice could not be brought to bear on him. He said the notice that he received (the letter of 31 March 2000) was not valid because it did not specify the date and time when Mr Bakalis was required to submit himself for examination by the doctors.
The review officer upheld this contention as regards Mr Bakalis' refusal to attend on Dr Kay. He said (AB203 par 12) "the advice from the respondent was non‑specific in that no arrangement had been made for an examination to take place" and that therefore (AB204 par 14) "… the notice relied upon by the respondent would not satisfy the requirements of s 64 or s 65. Therefore, I find as a fact the applicant was not given notice of an examination and as such did not breach s 64 of the Act in regard to Dr Kay".
Concerning the requirement to submit for examination by Dr Lord, the question of the validity of the notice was thought by the review officer not to arise because Mr Bakalis did in fact attend upon Dr Lord and did physically submit himself for examination. However, as has been recounted, when he did so he made it clear to Dr Lord that he gave no authority for Dr Lord to communicate the results of the examination to the appellants. Dr Lord honoured this claim of doctor/patient confidentiality and withheld his report. Eventually, more than a month after being required to submit himself for examination by Dr Lord, Mr Bakalis through his new firm of solicitors advised the appellants' solicitors that he no longer "claim[ed] patient confidentiality in respect of Mr Lord's examination/report". However, the review officer decided that during the time that Mr Bakalis maintained his claim of confidentiality he was refusing to submit himself for examination as required or he was obstructing that examination; and that he had no reasonable excuse within the meaning of s 64(1) for doing so: (AB211 par 24). The review officer held that by the time he gave up this claim of confidentiality Mr Bakalis' right to compensation had ceased by operation of s 64(1), through effluxion of time. The review officer thereupon dismissed the application.
Mr Bakalis appealed to the Compensation Magistrate's Court on a number of grounds, two of which succeeded. The two successful grounds related to the proceedings involving Dr Lord. No appeal ground specifically referred to the proceedings involving Dr Kay. This is not really surprising as the review officer's decision to dismiss Mr Bakalis' application was based entirely on Mr Bakalis' constructive refusal to submit himself for examination by Dr Lord, and/or his obstruction of that examination by insisting for longer than the period prescribed by s 64(1) that there should be no communication of the results of the examination to the first appellant.
The successful grounds of appeal were pleaded in the following terms:
"3.3The review officer erred in making a determination that s 64 of the Act applied to the examination by Dr Lord on 1 May 2000.
Particulars of Error
(a)There was no evidence that the appointment was made pursuant to s 64.
(b)The respondent's submission was that the examination on 1 May 2000 was not an examination pursuant to s 64 of the Act.
3.4The review officer erred in finding that the appellant (applicant) obstructed the examination in accordance with s 64 of the Act
Particulars of Error
(a)The review officer misapplied the decision of Grassenis v Tom's Crane and Plant Hire (at page 11, reasons). The review officer should have found that the worker's conduct did not amount to 'an obstruction' for the purposes of s 64.
(b)The worker's statement to Dr Lord (that he had withdrawn an authority previously) was not an obstruction of the examination within the meaning of s 64. Dr Lord's (and the respondent's) assumption of its legal effect is the reason for the non‑provision of the report until later.
(c)According to Grassenis, the respondent's rights were to compel the early release of Dr Lord's report, pursuant to s 64, by getting an order requiring its early production. Neither request nor application was made by the respondent after it became aware of the hold up on 1/5/00."
These grounds of appeal suffer from being argumentative but what they come down to is firstly that there was not a non‑compliance by the worker with s 64 because no valid s 64 notice was given to him in that no time and date of the proposed examination by Dr Lord was stipulated in the purported notice and it was immaterial that Mr Bakalis had actually attended on Dr Lord. Secondly, the mere asserting of a claim of doctor/patient confidentiality in respect of the examination did not amount to a refusal to submit to (or to an obstruction of) the examination within the meaning of s 64(1).
As has been observed already, the Compensation Magistrate upheld both these grounds of appeal.
I am of the opinion that both grounds of appeal should have been rejected.
In my opinion, it is sufficient for the purposes of s 64(1) to give notice that the worker is required to submit himself for examination by a named medical practitioner without specifying the date and time of the medical appointment. I think this is the proper construction of s 64(1). As a matter of ordinary language a person is "required" to submit himself for examination by a particular doctor once it is made known to him that he is required to do so. This construction accords with commonsense. From every practical point of view a medical appointment is best arranged between the doctor and the proposed examinee. Any other regime is likely to give rise to much waste of time and effort on all sides and I would not construe the section as creating such a regime unless compelled to do so. Not only is there no express provision in s 64(1) obliging the employer to specify or stipulate the date and time of the appointment, the saving provision contained in the last fifteen words of the sub‑section ("… unless he submits himself for examination within one month after being required to do so") does not make sense if in order to be valid the s 64 notice must stipulate the time and date on which the worker is required to submit himself. It would be quite illogical to provide that a worker has a month to comply with a requirement which is not valid unless it stipulates a specific time and date on which the requirement must be complied with.
This is not to say that if the worker does nothing about arranging to be seen by the doctor he must necessarily be held to have unreasonably refused to submit to the examination or to have unreasonably obstructed it. Whether he has or whether he has not remains a question of fact.
Was there a refusal by Mr Bakalis to submit himself for examination by Dr Lord or an obstruction by Mr Bakalis of that examination?
It goes without saying that the whole purpose of an examination under s 64 is to enable the employer/insurer to be advised by the doctor of the results of the examination. I cannot see how a worker can say that he has submitted to such an examination if at the time he attends he insists that the results of the examination are to be kept confidential. Submission for a s 64 examination on that condition is no submission at all. It is a refusal to submit for examination except on a condition which would make the whole exercise futile.
In my opinion, the conduct of Mr Bakalis in insisting that there be no communication to the appellants of the results of any examination conducted by Dr Lord amounted to a refusal by Mr Bakalis to submit himself for examination or an obstruction of that examination. That conduct persisted for longer than the time limit prescribed in s 64(1) with the result that Mr Bakalis' right to compensation ceased.
I would allow the appeal on these grounds.
A further point was argued on behalf of the first appellant relating to the proceedings involving Dr Kay. As already mentioned the review officer held that non‑attendance upon Dr Kay had no consequences under s 64 because the notice requiring Mr Bakalis to submit himself for examination by Dr Kay did not stipulate the date and time of appointment. For reasons already given I do not consider the failure to stipulate a date and time in a s 64 notice invalidates it and the notice requiring Mr Bakalis to submit himself for examination by Dr Kay was not invalid for want of such a stipulation. It is worth mentioning, however, that there may be

other reasons why no adverse determination could be made against Mr Bakalis in respect to the failure to submit himself for examination by Dr Kay. Mr Bakalis had been Dr Kay's private patient. Arguably s 64 is not intended to operate in such a way as to give insurance companies the power to extract medical reports from a worker's own doctor against the wishes of the worker. It may be argued that such a doctor is not "a medical practitioner provided and paid by the employer" within the meaning of s 64(1) which, perhaps, contemplates an independent doctor, not the worker's own doctor. Furthermore, even in a case in which the doctor is no longer the worker's treating practitioner, a worker who has been treated by the doctor as a private patient and who on that ground refuses to comply with the requirement to submit to a s 64 examination by that doctor may well be acting reasonably. The worker may well entertain a legitimate concern that matters of a confidential nature communicated by him to the doctor during private treatment might intrude into the discharge by the doctor of his duty to the insurance company to report following upon a s 64 examination.

However, these matters were not fully argued and are not necessary for the decision in this case and I would not wish to be taken as expressing a final view about them.
TEMPLEMAN J: The respondent, Vasilios Andrew Bakalis, claims to have been disabled by a stress disorder contracted in the course of his employment as a loss assessor. Mr Bakalis, who was employed by two companies, sought workers' compensation from each of them.
Following unsuccessful attempts to resolve Mr Bakalis' claim by conciliation, the solicitors for his employers' workers' compensation insurers (the present appellants) wrote to his solicitors on 31 March 2000, saying
" … we … give you notice … that our client requires your client, under section 64 of the [Workers' Compensation and Rehabilitation] Act [1981], to submit himself for examination by the three medical practitioners named in our letter dated 10 March 2000. In view of the manner in which your client's application has proceeded thus far, we do not propose to make any appointments for your client to see these medical practitioners until your client has indicated that he is willing to submit himself for examination by the medical practitioners.

If we do not receive any response … by close of business on Thursday 6 April 2000, we will assume that your client has refused to submit himself to examination."

In fact, by the time the appellants' solicitors wrote that letter, there were only two medical practitioners upon whom Mr Bakalis was required to attend. They were Dr Oleh Kay and Dr David Lord.
Despite the request, Mr Bakalis did not submit himself for examination by Dr Kay. He did attend on Dr Lord, and was examined by him. However, he told Dr Lord he had withdrawn his authority for Dr Lord to communicate the results of his examination to the appellants.
Mr Bakalis' claim was the subject of a review, pursuant to s 84Y of the Workers' Compensation Act & Rehabilitation 1981. At a review hearing on 21 July 2000, the appellants raised a preliminary point. The contended that by failing to submit to an examination by Dr Kay, and by withdrawing his authority to Dr Lord, Mr Bakalis had failed to comply with the provisions of s 64 of the Act. It was contended further, that in these circumstances, Mr Bakalis' application was an abuse of process, and should be dismissed.
The review officer held that Mr Bakalis had failed to comply with the requirements of s 64 of the Act, without reasonable excuse and that "his entitlement to prosecute his claim for workers' compensation is forfeited". The review officer therefore ordered that Mr Bakalis' claim be dismissed. He declined to consider the appellant's "abuse of process" claim.
Mr Bakalis appealed to a Compensation Magistrate against the review officer's decision. There were several grounds of appeal, but only two were successful. In substance, the Magistrate held that:
(1)because the letter dated 31 March 2000 from the appellants' solicitors to Mr Bakalis did not specify a date and time for a medical examination, it was not a sufficient requirement to submit to such an examination, for the purposes of s 64 of the Act ; and
(2)Mr Bakalis' withdrawal of his medical authority to release information did not amount to a refusal to submit to the examination by Dr Lord, or an obstruction of it.

The appellants now appeal to this Court. The grounds of appeal are lengthy and argumentative. They do not comply with O 63 r 2(2), which requires the grounds of appeal to be stated "briefly, but specifically".
Briefly, and specifically, the appellants contend that the Compensation Magistrate should have reached the opposite conclusions in relation to the matters set out in (1) and (2) above.
In order to resolve this appeal, it is necessary to construe s 64 of the Act. To facilitate that process, I set out subsection (1), broken into its component parts, and omitting words which are irrelevant for present purposes.
"Where a worker has given notice of a disability, he shall if so required by the employer
-submit himself for examination
-by a medical practitioner provided and paid by the employer,
and, if he, without reasonable excuse …
-refuses to submit himself to such an examination,
-or in any way obstructs it,
-his right to compensation … shall be suspended until such an examination has taken place,
-and shall cease unless he submits himself for examination within one month after being required to do so."
The obligation on the worker when "so required by the employer" is not to agree that he will be examined: it is to submit himself for examination. In my view, the worker cannot submit himself unless he attends on the medical practitioner for that purpose. This implies that an appointment must be made. And since the medical practitioner is provided and paid by the employer, it is also to be implied, I think, that the employer should make the appointment.
In other words, the section contemplates that the worker will submit himself for a specific examination, arranged by the employer. It is, after all, the employer who requires the worker to be examined.
In my view, this construction is supported by the provisions concerning refusal and obstruction. These provisions are intended to deal first with the worker who is unwilling to submit to any examination – that is, "to such an examination". The use of the indefinite article suggests a general refusal, as opposed to a refusal to attend a specific pre-arranged examination.
Secondly, the provisions deal with the worker who attends for examination, but "in any way obstructs it".
The section does not refer to the obstruction of any such examination, but the obstruction of "it". In my view, that is a reference to a specific examination, namely, that to which the worker is required to submit himself.
In my view, the provisions about suspension and cessation of the workers' rights apply only to the worker who refuses to submit to "any such examination", or who obstructs the examination which has been arranged for him. Having manifested an intention not to comply with the employer's requirement, he is given a period of grace of one month in which to reconsider his position. Thus, the one month period has no relevance in the ordinary course. The first part of the section contemplates that the worker will attend the appointment arranged by the employer.
It was urged on the Court by counsel for the appellants that it would be much more convenient for all concerned if the employer was required only to nominate the medical practitioner, leaving it to the worker to make a mutually convenient appointment. This, it is said, would give the worker greater autonomy, thereby enhancing his dignity. It would also be possible for a worker to take an appointment at short notice, following a cancellation, for example. (Although I see no reason why that could not happen, whoever made the appointment).
While I appreciate the force of the argument, I am not persuaded that s 64 permits such a regime. In my view, the intent of the section is that the proceedings should be controlled by the employer. It is the employer who provides and pays for the services of the medical practitioner. The employer will want to be sure that the medical practitioner will be available to examine the worker within a reasonable period. If the arrangements are left to the worker, there is potential for unacceptable delay and a greater potential for a dispute to arise about the worker's willingness to submit himself for examination.

Having said that, I see no objection to a worker rescheduling an examination which has been made for him at an inconvenient time, by agreement with the medical practitioner, and if this was likely to result in excessive delay, subject to agreement by the employer. A worker who sought such an indulgence would not be refusing to submit to "such an examination", and he would not be obstructing the examination.
In the present case, the letter dated 31 March 2000 from the employers' solicitors did not specify the date and time on which Mr Bakalis was to submit himself for examination. It did not therefore, activate s 64 of the Act.
For these reasons, I consider that the Compensation Magistrate reached the correct conclusion in relation to this issue.
In my view, the second issue turns on its facts. Mr Bakalis attended on Dr Lord and was examined by him. Mr Bakalis did not in any way obstruct the examination.
Although Mr Bakalis told Dr Lord he had withdrawn his authority to disclose the results of the examination to the appellants, that statement was of no effect, in my view. That is because Mr Bakalis had no such authority. Dr Lord was a medical practitioner provided and paid for by the employer. There was no doctor-patient relationship between Dr Lord and Mr Bakalis. The object of s 64 would be frustrated if such a relationship existed.
In my view, Dr Lord was under no obligation of confidentiality, and should not have declined to report the result of his examination. Mr Bakalis should not be required to suffer any consequences as a result of Dr Lord's decision.
I therefore conclude that the Compensation Magistrate reached the correct result in relation to this issue also.
I would dismiss the appeal.
MCLURE J: The respondent claims to have suffered a stress disorder in the course of his employment. In November 1999 he initiated proceedings under the Workers' Compensation and Rehabilitation Act 1981(WA) ("Act") to recover workers' compensation. This appeal concerns the construction of s 64(1) of the Act which provides:

"(1)Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."

The questions in issue in the appeal are whether:
(a)the appellants had required the respondent to submit himself for examination;
(b)the respondent had refused to submit himself to such an examination or in any way obstructed it.

Background Facts

At an informal conference between the parties to the workers' compensation proceedings held on 15 February 2000, the insurer's solicitors suggested to the respondent that he be examined by a number of medical practitioners and that the examinations be carried out in circumstances where the medical practitioners had been supplied with a full medical history.
On 1 March 2000 the respondent wrote to the appellants' insurer advising that the respondent had appointed solicitors and that he withdrew "all medical authorities previously provided to your office, effectively immediately".
The insurer's solicitors wrote to the respondent's solicitors on 10 March 2000 recording what had occurred at the informal conference and continued:
"Our client now proposes that the medical practitioners who should examine your client in this fashion are:
1.Dr Oleh Kay;
2.Dr Hans Stampfer;
3.Dr David Lord.
Please let us know as soon as possible whether your client will agree to be examined by these medical practitioners. If he is, we will then proceed to make the necessary arrangements as quickly as possible."
The respondent's solicitors did not reply to the letter. The insurer's solicitors wrote again on 31 March 2000 stating (inter alia):
"In the circumstances, we once again give you notice, this time formally in writing, that our client requires your client, under Section 64 of the Act, to submit himself for examination by the three medical practitioners named in our letter dated 10 March 2000. In view of the manner in which your client's application has proceeded thus far, we do not propose to make any appointments for your client to see these medical practitioners until your client has indicated that he is willing to submit himself for examination by the medical practitioners.
If we do not receive any response to this facsimile by close of business on Thursday 6 April 2000, we will assume that your client has refused to submit himself to examination."
A preliminary hearing before a review officer was held on 13 April 2000. There appears to have been an understanding by both sides that the respondent was required to lift his withdrawal of authority for the examination by Dr Lord to proceed. So much emerges from a letter of 2 May 2000 from the insurer's solicitors to the respondent's solicitors which also records that the appellants had arranged for Dr Lord to see the respondent and that the respondent attended on Dr Lord on 1 May 2000. However, the respondent told Dr Lord that he had withdrawn his medical authority as from 1 March 2000. As a result, Dr Lord was unsure as to his position and did not communicate the results of the examination to the appellants. In their letter of 2 May 2000 the insurer's solicitors requested the respondent's solicitors to advise Dr Lord as soon as possible that he had the respondent's authority to report to the appellants.
The respondent's solicitors replied by letter dated 13 June 2000. The letter confirms that the respondent saw Dr Lord on 1 May 2000 and continues:
"Mr Bakalis does not claim patient confidentiality in respect of Mr Lord's examination/report. That is, he has instructed us that solely in respect of Mr Lord's report his previous medical authority remains good."
At a review hearing on 21 June 2000 the appellants claimed that the respondent had failed to comply with s 64 of the Act in that he had failed to submit to an examination by Dr Kay and had failed to submit himself for, or obstructed an examination by, Dr Lord.
The review officer found in effect that the appellants had not required the respondent to submit to an examination by Dr Kay because the notice failed to specify the date and time of the appointment and thus did not comply with s 64 of the Act. The question of whether the appellants had required the respondent to submit to an examination by Dr Lord was thought by the review officer not to arise because the respondent did in fact attend upon Dr Lord. However, the review officer decided that during the time that the respondent maintained his claim of confidentiality he was refusing to submit himself for examination or was obstructing it and that he had no reasonable excuse for doing so. The review officer concluded that the respondent's right to compensation had ceased by operation of s 64(1) through effluxion of time.
The respondent appealed to the Compensation Magistrate and was successful. The Compensation Magistrate held that s 64(1) requires that notice of the requirement to submit for examination must include the date and time of the examination, without which the worker could not comply with the requirement. He also held that the respondent's withdrawal of his medical authority to release information did not amount to a refusal to submit for examination by Dr Lord or an obstruction of it.

Whether Notification Invalid

The notification question involves two rolled up issues. Firstly, whether s 64(1) of the Act impliedly provides for the employer to notify the worker of the date and time at which he is to submit himself for examination by the nominated medical practitioner. Secondly, if the Act so provides, whether failure to do so invalidates the notice (as to which see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
Section 64 of the Act has a legislative history which can be traced to the Workmens' Compensation Act 1906 (UK): Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552 at 560. However, the 1906 English legislation only provided for suspension of the worker's rights and not cessation.
Section 64 of the Act does not expressly deal with the nature or content of any notification from the employer to the worker. It is a question of what can be inferred or implied.
I start with the scheme of the section with emphasis on the provision made for suspension and cessation of rights. The requirement that the worker "submit himself for examination" requires that he personally attend the nominated medical practitioner.
The suspension and cessation of the right to compensation and to take or prosecute proceedings under the Act are only activated if the worker refuses to submit himself to such an examination or in any way obstructs it, without reasonable excuse, proof of which is on him.
The worker's rights cease unless he submits himself for examination within one month after being required to do so. On a literal reading, time begins to run from the date on which the worker receives notice of the employer's requirement for him to submit to an examination. This does not sit well with its obvious purpose which is to give the worker the opportunity to comply with the requirement notwithstanding an earlier refusal or obstruction. If time begins from the date of notification and an appointment is over a month later the worker's rights may cease immediately on refusal or obstruction. Further, it appears that suspension, which operates from refusal or obstruction, is intended to precede the more draconian remedy of cessation of rights. However, a literal or purposive construction of that aspect of s 64(1) does not affect the determination of the questions in this appeal and I express no final opinion on it.
On any view, cessation of rights does not occur simply because the worker has not submitted himself for examination within one month after being required to do so. If the worker has refused or obstructed an examination, it is then incumbent upon him to take the initiative and arrange to submit himself for examination within the statutory time frame. However, absent a refusal or obstruction, I do not infer from the section a positive duty on the worker to arrange an appointment with the nominated medical practitioner.
If s 64 imposed a general duty on the worker to organise an appointment with the nominated medical practitioner it is to be expected that a mere failure to submit (without reasonable excuse) would trigger the consequences of suspension or cessation. Yet mere delay does not sit well with the notions of refusal to submit to an examination or obstruction of it. This is so notwithstanding that I see no warrant for restricting the scope of the phrase "or in any way obstructs it" to a particular examination arranged under s 64. In my view, "it" refers to "any such examination" and is a reference to any examination under s 64 of the Act. Further, if the arrangements were solely the responsibility of the worker, there is potential for unacceptable delay and a greater potential for disputes to arise about the worker's willingness to submit himself for examination.
However, it does not follow from the conclusion that s 64 of the Act does not impose a general duty on the worker to arrange an appointment with the medical practitioner that a valid notification from the employer requires the specification of the date and time at which the worker must submit himself for examination. The section is silent on the point. It inferentially requires the employer to communicate to the worker the requirement for the worker to submit himself for examination. Thus, the employer must give the worker notice of the requirement to submit for examination by a nominated medical practitioner paid for by the employer. The worker may respond in a number of ways. He may expressly refuse to submit. In this case, the prior dealings between the parties suggested a likelihood that the worker would refuse to submit. Indeed, the failure of the appellants to include the date and time of the appointment in the notice had no impact on the factual question of whether the respondent refused to submit or obstructed the examination.
Alternatively, the worker may arrange an appointment himself or provide the employer with information to enable the employer to make an appointment at a mutually convenient time. Or he may do nothing. From a practical perspective, it will usually be in the best interests of the employer, particularly in the absence of a co-operative or responsive worker, to make and advise the worker of an appointment date and time because that will facilitate the employer discharging its onus of proving a refusal or obstruction without which the consequences of suspension or cessation of worker rights cannot be triggered. For this reason and because the medical practitioner is to be provided and paid for by the employer, I conclude that prior to refusal or obstruction the employer has the responsibility of organising an appointment (subject to any agreement with the worker to the contrary). However, it does not in my view follow that the omission of the appointment date and time from the notice invalidates it.
I infer from the omission from s 64 of any express requirement as to the form or content of the notification that flexibility is intended because of the variety of possible responses by the worker, some of which may constitute a refusal or obstruction, and to promote co-operation. The object of the section can most satisfactorily be achieved by co-operation between the employer and worker. In my view, s 64 does not require as a condition of validity of the notice, that the worker be notified of a requirement to submit at a specified date and time. In reaching this conclusion I have taken into account that on a literal construction of the final words of s 64(1) the inclusion of the appointment date and time in the notice will not prevent cessation of rights prior to refusal or obstruction.
Thus, the insurer's solicitor's letter of 31 March 2000 is a valid notification under s 64 of the Act requiring the respondent to submit himself for examination. Accordingly I uphold the first ground of appeal.

Refusal or Obstruction of Examination

The notion of "examination by a medical practitioner" is not confined to a physical examination. Rather, it extends to what is traditionally encompassed in a medical consultation including the provision of a history, a physical examination and where necessary the conduct of any relevant investigations. Further, the purpose of the examination under s 64 is the provision of a report by the medical practitioner to the employer as expressly contemplated in s 70 of the Act.
Whether a worker refuses to submit himself to an examination or obstructs it is a question of fact. The respondent's conduct in maintaining the withdrawal of his authority to communicate the results of Dr Lord's examination to the appellants caused Dr Lord to refrain from reporting to the appellants. In my view the respondent's claim of right to confidentiality is an operative cause of the refusal or obstruction regardless of whether Dr Lord was entitled or obliged to ignore the claim.
In any event, Dr Lord was not entitled to report to the appellants. The fact that the employer pays the medical practitioner is not determinative of the question whether Dr Lord was entitled to report to the appellants. Even if the contract is solely between the employer and the medical practitioner, the medical practitioner owes duties of confidentiality to the worker and may be in a fiduciary relationship with him: Breen v Williams (1996) 186 CLR 71. When a worker submits to an examination under s 64 of the Act, the medical practitioner has implied authority to report the results of the examination to the employer. In this case, that implied authority was expressly negatived and as a result, the respondent had refused to submit to an examination under s 64 of the Act. It is not such an examination if the submission is conditional on the medical practitioner maintaining patient confidentiality. It matters not when the condition is imposed.

As the respondent had not submitted himself for examination under the Act within one month after being required to do so, whether on a literal or purposive construction, his right to compensation and to take proceedings under the Act ceased.
For these reasons I also uphold the second ground of appeal. I would allow the appeal. In the circumstances I do not propose to deal with the ground of appeal concerning Dr Kay.