Clews v Tritton Resources Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Clews v Tritton Resources Pty Limited [2023] NSWPIC 17
APPLICANT:	Shane Allan Clews
RESPONDENT:	Tritton Resources Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	17 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injury; claim for lump sum compensation for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) as well as claim for weekly payments compensation; claim for lump sum disputed by respondent and medical assessment required pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); terms of medical assessment referral to be determined; consideration of applicant’s statement, medical reports and other treatment records, factual evidence, and claim correspondence; consideration of whether any of the documents attached to the respondent’s reply should be excluded from the medical assessment referral (as well as excluded from evidence in the proceedings); section 73 of the 1998 Act due to failure to attach those documents to the respondent’s liability notices; in accordance with clause 41 of the Workers Compensation Regulation 2016 (the Regulation); Chown v Tony Madden Refrigeration Transport Limited considered; Held – both of the respondent’s liability notices were decisions within clause 41(2) of the Regulation; as a result, pursuant to clause 41(3) of the Regulation, the respondent was required to include with the notices any reports in its possession, as described in clause 41(1) of the Regulation; it did not do; the consequence of the respondent’s failure in this regard, pursuant to sections 73(3)(b) and 73(3)(c) of the 1998 Act, is that the reports that it did not include are not admissible in proceedings before the Personal Injury Commission and are unable to be disclosed to a Medical Assessor (MA); there is no discretion to determine otherwise; the pages that are to be withdrawn from the respondent’s Reply in this regard are pages 9-207 inclusive, 283-325 inclusive, 572, 575-576 inclusive, 579, 581, 583, 592, 594-623 inclusive, and 644-788 inclusive; the dispute is to now proceed to medical assessment and the terms of the referral made on 10 November 2022 are amended so that the pages withdrawn from the respondent’s reply are not to be reviewed by the MA.
DETERMINATIONS MADE:	1. There are documents attached to the respondent’s Reply that are to be excluded from Medical Assessment referral, as well as excluded from evidence in the proceedings, pursuant to ss 73(3)(b) and 73(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998, due to its failure to attach those documents to its liability notices dated 11 November 2021 and 22 December 2021, in accordance with cl 41 of the Workers Compensation Regulation 2016. 2. The relevant pages to be withdrawn from the Reply in this regard are pages 9-207 inclusive, 283-325 inclusive, 572, 575-576 inclusive, 579, 581, 583, 592, 594-623 inclusive, and 644-788 inclusive.
ORDERS made:	1. The orders which I made on 10 November 2022 are amended. 2. The following pages are withdrawn from the respondent’s Reply – pages 9-207 inclusive, 283-325 inclusive, 572, 575-576 inclusive, 579, 581, 583, 592, 594-623 inclusive, and 644-788 inclusive. 3. The dispute is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) date of injury: 13 June 2017, and (b) body systems/parts: psychiatric and psychological disorders. 4. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents, and (b) the respondent’s Reply and attached documents, except for those pages withdrawn in accordance with order 2 above. 5. Following the medical assessment, the dispute is to be listed for preliminary conference before me to determine any outstanding matters in it.

STATEMENT OF REASONS

BACKGROUND

Shane Clews (the applicant) is 38 years old. He was employed by Tritton Resources Pty Limited (the respondent) when he was involved in a motor vehicle accident between his vehicle and a truck on 13 June 2017. The accident occurred in the course of his employment with the respondent, at the respondent’s mine. He sustained psychological injuries, as well as some minor physical injuries.
By way of a letter from his solicitors dated 13 August 2021 (letter of claim), the applicant claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), with respect to 15% whole person impairment in relation to his psychological injuries. He also claimed weekly payments of compensation from January 2018, and payment of ongoing medical expenses pursuant to s 60 of the 1987 Act. He relied upon medical evidence from Drs Teoh and Mathieson.
The respondent replied to the letter of claim with a notice dated 11 November 2021 pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice:
(a) denied that the applicant was entitled to s 66 compensation on the grounds that he had not sustained a primary psychological injury, or alternatively that his level of whole person impairment was not 15% or greater, and
(b) denied that the applicant was entitled to weekly payments compensation or s 60 expenses.
The respondent was asked to review its 11 November 2021 notice, and it issued a further liability notice dated 22 December 2021. This notice accepted that the applicant had an incapacity for work and need for medical treatment. It also accepted that the applicant had sustained a primary psychological injury, but it continued to maintain that his level of whole person impairment in this regard was not 15% or greater.
As a result, by way of an Application to Resolve a Dispute (the ARD) filed with the Personal Injury Commission (the Commission), the applicant requests that the Commission determine the extent of his weekly payments compensation entitlements, as well as the level of his whole person impairment as a result of the 13 June 2017 injury (which will determine if he is entitled to s 66 compensation).
The resultant dispute as to the level of the applicant’s whole person impairment is a medical dispute to be referred to one of the Commission’s Medical Assessors in accordance with s 319 of the 1998 Act. The terms of that referral however need to be determined.
The respondent has filed its Reply (Reply) to the ARD, which attaches copies of (at page 328) its 10 November 2021 notice and (at page 339) its 22 December 2021 notice (the respondent’s liability notices). It is apparent that the only document attached to either of these notices was a report from Associate Professor Davies dated 29 October 2021.

ISSUES FOR DETERMINATION

The parties have agreed that a preliminary issue needs to be determined by me before the medical dispute in relation to the level of the applicant’s whole person impairment can necessarily be referred for Medical Assessment, as follows:
(a) whether any of the documents attached to the Reply should be excluded from the Medical Assessment referral (as well as excluded from evidence in the proceedings) pursuant to s 73 of the 1998 Act due to failure to attach those documents to the respondent’s liability notices, in accordance with cl 41 of the Workers Compensation Regulation 2016 (the Regulation).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A preliminary conference was held in the dispute on 10 November 2022. It was then agreed between the Commission and the parties that the appropriate first step for the expeditious resolution of the dispute was for a Medical Assessment to be arranged in order to determine the level of the applicant’s whole person impairment as a result of his primary psychological injury, now accepted by the respondent. The level of that impairment would determine whether he was entitled to compensation pursuant to s 66 of the 1987 Act, and it would also be relevant to a consideration of his weekly payments compensation entitlements, as at least some of those entitlements would fall to be determined pursuant to s 38 of the 1987 Act.
Following the Medical Assessment, the dispute would be referred back to myself to confirm any 66 entitlement, and to determine any entitlement to weekly payments compensation.
At the preliminary conference, the applicant was represented by Mr Stuart and the respondent was represented by Ms Tancred. The applicant was present.
The respondent consented to the ARD and all its attachments being reviewed by the relevant Medical Assessor, but the applicant did not consent to all of the attachments to the Reply being reviewed by the Medical Assessor. Initially, the applicant argued that some of the attachments would not be relevant to the medical dispute which needed to be determined by the Medical Assessor.
I considered that it would be a matter for the Medical Assessor to determine the relevance of any documents, and the weight to be given to them. I considered it to be inappropriate for myself to make a determination in this regard. There could be no suggestion that the Medical Assessor (when conducting the assessment and preparing the necessary certificate) would certainly be in the best position to determine the relevance of any particular document.
In accordance with s 43(2) of the Personal Injury Commission Act 2020, the Commission is not bound by the rules of evidence (including such rules that relate to the admission of relevant documents). Instead, the Commission is to inform itself on any matter as it considers appropriate. In practice, evidence that is found to be not particularly relevant by the Commission is generally not excluded, but is given little to no weight in determinations by the Commission.
I therefore ordered the remittance of the dispute to the President of the Commission for referral to a Medical Assessor, and then ordered that the Medical Assessor have access to both the ARD and all its attachments, as well as the Reply and all its attachments.
I did not initially appreciate that the applicant was also arguing that some of the attachments to the Reply were inadmissible pursuant to s 73 of the 1998 Act due to failure to attach those documents to the respondent’s liability notices, in accordance with cl 41 of the Regulation.
The applicant made this argument clear to me in an email that was forwarded to the Commission promptly following his receipt of my formal orders. Upon receiving this email, I considered it necessary to re-convene the preliminary conference on the grounds of procedural fairness to both parties.
I ordered that prior to the further preliminary conference on 17 November 2022, the applicant was to lodge with the Commission and serve upon the respondent a list of the documents attached to the Reply that it objected to as being inadmissible, since they were not attached to the respondent’s liability notices.
The applicant essentially lodged written submissions (rather than a list as such) on
17 November 2022.
At the preliminary conference on 17 November 2022, the applicant was again represented by Mr Stuart, and the respondent was again represented by Ms Tancred. The applicant was again present.
The respondent had not had sufficient time to consider the applicant’s written submissions, and I therefore ordered a timetable for the provision of further written submissions by both parties.
The Commission has since received:
(a)    written submissions from the respondent dated 1 December 2022;
(b)    supplementary written submissions from the applicant dated 7 December 2022, and
(c)    further written submissions in reply from the respondent dated
14 December 2022.
I advised the parties during the preliminary conference on 17 November 2022 that after I had considered all the written submissions, I would either amend or confirm the Medical Assessment referral orders which I initially made on 10 November 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before me and considered in making this determination:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Evidence consideration

Considering the discrete issue which I need to determine, I do not need to and I do not intend to review the evidence relied upon by each party in detail. I have considered all the evidence before me, but in these reasons, I only need to consider each attachment to the Reply which is objected to by the applicant as being inadmissible in accordance with s 73 of the 1998 Act.
It is common ground in this regard that the report of Associate Professor Davies dated
29 October 2021 was the only document of any description attached to the respondent’s liability notices.
The reply otherwise attaches:
(a)    the applicant’s employment contract with the respondent;
(b)    various correspondence from the respondent, from the respondent’s insurer (including the respondent’s liability notices), from the applicant’s solicitors, and from the respondent’s solicitors;
(c)    a police report (pages 9-13);
(d)    a report dated 18 October 2021 (with attachments) from investigators (Procare) retained by the respondent’s solicitors (pages 14-207);
(e)    the respondent’s enterprise agreement;
(f)    some taxation records of the applicant’s;
(g)    the applicant’s clinical notes from Precision Health Care (pages 283-289);
(h)    the applicant’s clinical notes from Tim Manning (pages 290-325);
(i)    some pay and other employment records of the applicant’s with the respondent;
(j)    an application for assessment of permanent impairment made by the applicant to the State Insurance Regulatory Authority (a MAS2A application) dated
18 February 2021 - which attaches various documents, being mostly correspondence and some taxation records, but also including a report from
Dr Teoh, and clinical notes from Tim Manning and Precision Health Care;
(k)    some leave records of the applicant’s with the respondent - including medical certificates on pages 572, 575, 576, 579, 581, 583, and 592;
(l)    certificates of capacity at pages 594-599, 602-607, and 610-615;
(m)     a return to work plan signed by a treating doctor of the applicant’s on
23 June 2017 (pages 600-601);
(n)    reports from Tim Manning (psychologist) dated 18 August 2017 and
20 August 2021 (pages 608-609 and 622-623);
(o)    a sleep study dated 5 March 2019 (pages 616-619);
(p)    a mental health plan dated 31 October 2019 (pages 620-621);
(q)    a medical assessment certificate from the Commission dated 7 February 2022;
(r)    the applicant’s clinical notes from Cobar Primary Health (pages 644-692);
(s)    the applicant’s clinical notes from Delroy Park Medical Centre (pages 693-758);
(t)    the applicant’s clinical notes from Leichhardt Medical Centre (pages 759-787), and
(u)   a K10 questionnaire in relation to the applicant dated 31 October 2019 - prepared by Dr Reid (page 788).

Submissions

As indicated, both parties have provided two sets of submissions. As all sets of submissions are in writing and form part of the Commission’s record, I do not intend to summarise them in detail.
I have considered the entirety of the written submissions provided, and thank the parties for their guidance in this regard.
I do however note that a significant amount of the submissions deal with particular documents not being relevant to the medical dispute which needs to be determined by the Medical Assessor. I do not intend to address the submissions in this regard, as I have already determined (at the initial preliminary conference on 10 November 2022) that I would not be excluding any documents from the referral to the Medical Assessor on the grounds of relevance – see my reasons provided at paragraphs 14 and 15 above.
I will of course in my reasons below address the submissions dealing with the sole issue (as outlined in paragraph 8 above) that I now need to determine.

FINDINGS AND REASONS

Section 73 of the 1998 Act reads as follows:
“(1) The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker's legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.
(2) Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators' reports, rehabilitation providers' reports and reports of assessments under section 40A (Assessment of incapacitated worker's ability to earn) of the 1987 Act.
(3) If an insurer fails to provide a copy of a report as required by the regulations under this section--
(a) the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and
(b) the report is not admissible in proceedings on such a dispute before the Commission, and
(c) the report may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.”
Pursuant to this section, cl 41 of the Regulation has been made. The clause reads as follows:
“(1) This clause applies to the following types of reports that an employer or insurer has in the employer's or insurer's possession--
(a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b) certificates of capacity,
(c) clinical notes,
(d) investigators' reports,
(e) workplace rehabilitation providers' reports,
(f) health service providers' reports,
(g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.
(2) This clause applies to the following decisions of an employer or insurer relating to an injured worker--
(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.
(3) For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).
(4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
(5) If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report--
(a) in the case of a medical report, certificate of capacity or clinical notes--to a medical practitioner nominated by the worker for that purpose, or
(b) in any other case--to a law practice representing the worker.
(6) If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may--
(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b) make such other directions as the Authority thinks fit.”

As only the report from Associate Professor Davies dated 29 October 2021 was included with the respondent’s liability notices (which in my opinion were clearly decisions within cl 41(2)(a) of the Regulation), the effect of s 73(3) of the 1998 Act is that the respondent is not able to rely upon any of the types of reports that it possesses and that are described in cl 41(1) of the Regulation. Any such reports are not admissible in proceedings before the Commission and cannot be disclosed to a Medical Assessor appointed by the Commission. The reports would need to be removed, if necessary, as attachments to the Reply.
It is therefore necessary to review the documents attached to the Reply (see paragraph 29 above) in order to determine which of them are types of reports described in cl 41(1) of the Regulation.
In my opinion, the documents mentioned in paragraphs 29(a), 29(b), 29(e), 29(f), and 29(i) above are clearly not reports as described in cl 41(1) of the Regulation. They are either financial documents, correspondence, or documents relating to the applicant’s employment conditions.
The police report (paragraph 29(c) above) is a report specifically obtained by the respondent and addressed to its solicitors. It is a report in relation to the circumstances surrounding the applicant’s accident on 13 June 2017. It therefore in my opinion contains information relevant to the applicant’s claim and should have been disclosed in the respondent’s liability notices in accordance with cl 41(1)(g) of the Regulation.
The Procare report (paragraph 29(d) above) is an investigators’ report and should have been disclosed in the respondent’s liability notices in accordance with cl 41(1)(d) of the Regulation. While some of the report’s annexures are documents that might not otherwise be reports within cl 41(1) of the Regulation, they are included in the Reply specifically as annexures to the report (and described as such in the index to the Reply); thus they form an integral part of the report and cannot be separated from it in the context of determining the need for disclosure in accordance with clause 41(1) of the Regulation. The report and all its annexures therefore need to be withdrawn from the Reply in accordance with s 73(3) of the 1998 Act.
The clinical notes mentioned in paragraphs 29(g), 29(h), 29(r), 29(s), and 29(t) above should have been disclosed in the respondent’s liability notices in accordance with cl 41(1)(c) of the Regulation.
In relation to the MAS 2A application referred to in paragraph 29(j) above, it is not a document which required disclosure in the respondent’s liability notices in accordance with cl 41(1) of the Regulation. It is not a report of any kind. However, it includes a report from
Dr Teoh as well as clinical notes from Tim Manning and Precision Health Care. These documents (which might otherwise have needed to be disclosed in accordance with cl 41(1) of the Regulation) are integral to the application, and specifically listed as supporting documents to it. In my opinion, it is not possible to separate the application form from its included supporting documents. If (as I have found) the application does not require disclosure in accordance with cl 41(1) of the Regulation, both the application form and its included supporting documents do not need to be withdrawn from the Reply in accordance with s 73(3) of the 1998 Act.
In relation to the documents mentioned in paragraph 29(k) above, the applicant’s leave records in my opinion are not reports requiring disclosure in accordance with cl 41(1) of the Regulation, but his medical certificates are. Although they are branded as certificates, they are in fact reports in relation to the condition of the applicant, requiring disclosure in accordance with cl 41(1)(a) of the Regulation.
The certificates of capacity mentioned at paragraph 29(l) above should have been disclosed in the respondent’s liability notices in accordance with cl 41(1)(b) of the Regulation.
The return to work plan mentioned in paragraph 29(m) above should have been disclosed in the respondent’s liability notices in accordance with cl 41(1)(e) of the Regulation.
Further, in my opinion, the documents mentioned in paragraphs 29(n), 29(o), 29(p), and 29(u) above are all either medical reports (in accordance with cl 41(1)(a) of the Regulation) or reports containing information relevant to the applicant’s claim (in accordance with cl 41(1)(g) of the Regulation). They also therefore required disclosure in the respondent’s liability notices.
Finally, in relation to the Commission’s medical assessment certificate mentioned in paragraph 29(q) above, while the certificate has many of the features of a medical report, I interpret those features as reasoning to support the findings in the certificate. This interpretation is consistent with s 61(9) of the Motor Accidents Compensation Act 1999. That section also deals with the status of the certificate, as follows:
“(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned.”
The certificate in my opinion is not a report containing histories, findings and opinions, but rather a certificate determining entitlements conclusively, and providing reasons. It is a certificate issued in accordance with statute. It has a significantly different purpose and nature to a document in which a medical practitioner reports as to an injured person’s condition. It is also issued by the Commission, rather than an individual medical practitioner.
For these reasons, I do not find that the certificate needed to be disclosed in the respondent’s liability notices, as it could not be considered to be a medical report or other report in accordance with cl 41(1) of the Regulation.
The other important point to note about the certificate of course is that it is dated after the dates of the respondent’s liability notices. It therefore could not in any event have been included with those notices.
The applicant has submitted that:
“Section 73 of the 1998 Act makes it clear that any material not provided by the insurer pursuant to the regulations is not admissible in proceedings and may not be disclosed to the medical assessor.”
He therefore argues that only the report of Associate Professor Davies dated
29 October 2021 should be admitted into evidence and forwarded to the Medical Assessor.
I reject this submission. The prohibition under s 73(3) of the 1998 Act only prevents the admission of the types of reports described in cl 41(1) of the Regulation, rather than “any material”. There is no prohibition under s 73(3) in the respondent relying upon material not provided with its liability notices as long as that material does not fall within cl 41(1).
The respondent’s submissions deal at some length with the prejudice that it would suffer if the documentation in its Reply (and specifically the documentation that was provided to Associate Professor Davies) was not provided to the Medical Assessor, arguing:
“The applicant submits that the IME report of Associate Professor Davies is the only documentation that should be viewed by the Medical Assessor. We submit that it is imperative that the Medical Assessor reviews the documentation reviewed by Associate Professor Davies and read in conjunction with his IME report. This will allow the Medical Assessor to analyse all the relevant evidence and come to an objective conclusion as to degree of permanent impairment.”
and:
“The respondent again submits that the exclusion of ALL other documents apart from the report of Associate Professor Davies will prejudice the insurer in this matter as it will not allow the assessor to gain a full and comprehensive understanding of the facts or how Associate Professor Davies reached his conclusion. Furthermore the evidence is critical to the determination of all issues in dispute.”
The respondent also argues that the applicant had “ample opportunity” to request from it the documentation that was provided to Associate Professor Davies, but did not do so.
While the respondent may be prejudiced in this regard, it is my opinion that I do not have a discretion when it comes to determining whether to admit documents under s 73(3) of the 1998 Act. The section is unambiguous in this regard, and I quote from Fleming DP (who was admittedly dealing with a slightly differently worded section as well as a clause under a previous Regulation) in Chown v Tony Madden Refrigeration Transport Limited [2005] NSWWCCPD 159:
“However, in my view section 73 of the 1998 Act and clause 37 of the Regulation are unambiguous in their language and the serious consequence of non-compliance is exactly what those provisions intended. They have a broader, underlying purpose, not referred to by the Arbitrator, but consistent with the objectives of the Workers Compensation Acts, namely to ensure a timely, effective and transparent determination of a workers entitlement to compensation as a result of a work injury.”
In those circumstances, it is my decision that I am not entitled to consider prejudice when determining whether to admit or withdraw documents that have not been provided to the applicant in contravention of s 73(3) of the 1998 Act.
The respondent also submits:
“Pursuant to regulation 41(1) and 41(2) there is nothing stipulated in this regulation that an insurer must provide the documents listed in subsection 1 to the applicant in order to supply those same documents to a Medical Assessor as background evidence to an examination.”
This submission however fails to consider s 73(3)(c), which clearly states that failure to provide reports in accordance with cl 41 leads to those reports not only being inadmissible in Commission proceedings, but also to them being unable to be disclosed to a Medical Assessor.
The respondent finally submits:
“As listed above in regulation 41(2)(a), (b) and (c) this regulation it is only applicable to the listed decisions. The degree of Permanent Impairment Assessment is not listed in this section.”
I reject this submission. The respondent’s liability notice dated 11 November 2021 (see paragraph 3 above) denied that the applicant was entitled to weekly payments, expenses pursuant to s 60 of the 1987 Act, as well as any entitlement pursuant to s 66 of the 1987 Act. In my opinion, the decision clearly falls within the description in cl 2(a) of the Regulation. Liability for the entirety of the applicant’s claim is disputed by the notice.
The respondent’s liability notice dated 22 December 2021 (see paragraph 4 above) follows a request by the applicant for the respondent to review its 11 November 2021 notice. The
22 December 2021 notice concludes:
“On this basis, we maintain you are not entitled to permanent impairment as your primary psychological injury has not resulted in more than 15% permanent impairment as required by section 65A(3) of the 1987 Act.”
The notice confirms the decision made by the 11 November 2021 notice to dispute liability specifically with respect to the applicant’s claim for an entitlement pursuant to s 66 of the 1987 Act, and therefore in my opinion, this decision clearly falls within the description in cl 2(c) of the Regulation.

SUMMARY

In summary, I find that both of the respondent’s liability notices were decisions within cl 41(2) of the Regulation. As a result, pursuant to cl 41(3) of the Regulation, the respondent was required to include with the notices any reports in its possession, as described in cl 41(1) of the Regulation. It did not do so.
The consequence of the respondent’s failure in this regard, pursuant to ss 73(3)(b) and 73(3)(c) of the 1998 Act, is that the reports that it did not include are not admissible in proceedings before the Commission and are unable to be disclosed to a Medical Assessor. I have no discretion to determine otherwise.
Having reviewed the attachments to the Reply in detail, I am satisfied that many of those attachments therefore need to be withdrawn from the Reply. They are withdrawn from the Reply not only for the purpose of the referral of the dispute to a Medical Assessor, but also for the purpose of the proceedings in general.
The attachments to be withdrawn are the attachments referred to in paragraphs 29(c), 29(d), 29(g), 29(h), 29(l), 29(m), 29(n), 29(o), 29(p). 29(r), 29(s), 29(t), and 29(u) above. The medical certificates referred to in paragraph 29(k) above will also be withdrawn.
The relevant pages to be withdrawn in this regard are pages 9-207 inclusive, 283-325 inclusive, 572, 575-576 inclusive, 579, 581, 583, 592, 594-623 inclusive, and 644-788 inclusive.
In accordance with paragraph 24 above, I amend the orders which I initially made on
10 November 2022, so that the documents in the Reply to be reviewed by the Medical Assessor are limited to only the documents that remain following the withdrawals referred to above.
The dispute will therefore now be remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment on the following bases:
(a) date of injury: 13 June 2017, and
(b) body systems/parts: psychiatric and psychological disorders.
The documents to be reviewed by the Medical Assessor are:
(a) the ARD and attached documents, and
(b) the Reply and attached documents, save for those withdrawn in accordance with paragraph 65 above.

69.Following the medical assessment, the dispute is to be listed for preliminary conference before me to determine any outstanding matters in it.

[2023] NSWPIC 17

17 January 2023