ComfortDelGro Corporation Australia Pty Ltd v Elmi-Anvari
[2024] NSWPICPD 34
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | ComfortDelGro Corporation Australia Pty Ltd v Elmi-Anvari [2024] NSWPICPD 34 |
APPELLANT: | ComfortDelGro Corporation Australia Pty Ltd |
RESPONDENT: | Foad Elmi-Anvari |
INSURER: | Self-insured |
FILE NUMBER: | A1-W3072/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 17 June 2024 |
ORDERS MADE ON APPEAL: | 1. I grant the appellant leave to appeal the decision of Member Drake dated 15 May 2024. 2. The appeal is dismissed. 3. I confirm the Certificate of Determination dated 15 May 2024. 4. The appellant can make application for the relief sought in paragraph [2.10.2] of the appellant’s written submissions dated 28 May 2024 on remitter to the Member. Generally, it is my view that such directions should be made if the material sought relates to the real issues in the dispute or otherwise will aid the parties and the Member to do justice in the matter. 5. I remit the matter to the same Member for further directions regarding the dispute. |
CATCHWORDS: | WORKERS COMPENSATION – Section 119 of the Workplace Injury Management and Workers Compensation Act 1998 considered, definition of “medical practitioner” considered, is a psychologist a medical practitioner as defined |
HEARING: | 14 June 2024 |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Sparke Helmore Lawyers | |
| Respondent: | |
| Mr L Robison and Ms M Wallis, counsel | |
| Santone Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms L Drake |
DATE OF MEMBER’S DECISION: | 15 May 2024 |
INTRODUCTION
The respondent suffered an accepted psychological injury in the course of his employment with the appellant. The respondent has now brought this application seeking lump sum compensation based on an assessment of 24% whole person impairment (WPI).
The appellant arranged for the respondent to be assessed by a Ms Tyler, psychologist, who was to undertake psychometric assessment testing of the respondent.
The respondent has declined the invitation to attend Ms Tyler’s assessment, stating that his obligation is only to attend an examination arranged with a “medical practitioner”. The respondent maintains that a psychologist is not a medical practitioner and as a consequence, he does not have to attend the examination.
I would note that the obligation to attend a medical examination at the direction of an employer is set out in s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). This obligation applies to an examination with a medical practitioner only.
The Member at first instance, in a Certificate of Determination dated 15 May 2024, found that a psychologist was not a medical practitioner and as such, the respondent was not obliged to attend the examination.
The appellant seeks to appeal this decision of the Member. The appellant relies upon the following three appeal grounds:
Ground One – The Member erred in law in that she failed to give adequate reasons for her decision.
Ground Two – The Member erred in law by failing to adopt procedural fairness and deal with the appellant’s submissions.
Ground Three – The Member erred at law in relation to her determination that a psychologist was not a medical practitioner within the meaning of s 119 of the 1998 Act and thereby erred in not staying the proceedings.
The Member’s decision is clearly an interlocutory one and as a consequence, leave to appeal is required by virtue of s 352(3A) of the 1998 Act. The principle to be applied in the grant of leave is whether determining the appeal is necessary or desirable for the proper and effective determination of the dispute. I would note that there is no transcript of the proceedings before the Member. The proceedings on 15 May 2024 were a preliminary conference, which is an informal hearing which is not transcribed. This is the invariable and well-known practice of preliminary hearings.
The appeal was heard before me on Friday 14 June 2024. On that date, after hearing the parties, I delivered brief oral reasons granting the appellant leave to appeal and dismissing the appeal. I informed the parties that more detailed written reasons would be supplied, hence this decision.
The appellant says that the outcome of the appeal may have implications for large numbers of cases dealing with psychological injuries. The appellant further states that there is significant compensation at stake and in light of the worker’s condition, the outcome may assist with his treatment.
I would also remark that both parties rely on conflicting first instance decisions on the question of whether a psychologist is a medical practitioner. The respondent submits that I am not bound by these decisions, which submission is plainly correct.
The respondent submits on the question of leave to appeal as follows. The respondent states that leave should be refused for the following reasons:
(a) no amount of compensation is directly in issue with respect to the subject matter of the appeal;
(b) the appeal is lacking in merit;
(c) no significant novel point of law is raised, and
(d) if the appeal grounds are made out, they are not sufficient to disturb the decision made, because the appeal does not challenge the contingent findings of the Member. The respondent says that the appeal is thus futile.[1]
[1] Respondent’s submissions 12 June 2024, [8].
I would remark that the respondent’s submission on leave at paragraph [8(a)] of its 12 June 2024 submission sits in direct opposition to that which appears at paragraph [2] of the same document, where no issue with a monetary threshold is taken. In my view and consistent with authority,[2] the amount of the claim made by the respondent surpasses the monetary limit.
[2] Grimson v Integral Energy [2003] NSWWCPD 29.
DECISION ON LEAVE TO APPEAL
There is no definition of what callings within the medical profession are “medical practitioners” in either the Workers Compensation Act 1987 (the 1987 Act) or the 1998 Act. The former s 59 of the 1987 Act, which did contain a definition, was repealed more than a decade ago by the Health Practitioner Regulation Amendment Act 2010, Sch 2.52[1] and [2] (2010 Act). This Act made a number of substantive changes as well as consequential amendments to other NSW legislation, including repealing s 59 of the 1987 Act.
The appellant points to a decision of the former Workers Compensation Commission by Arbitrator Wynyard (as he then was) in Bunce v State of NSW[3] where the Arbitrator accepted that a psychologist was a medical practitioner. I would note that Bunce was appealed and the Presidential member was not called upon to decide that question. Indeed Deputy President Snell expressly stated that his decision was not to be taken as an endorsement of the approach taken by Arbitrator Wynyard on that issue.[4] The appellant argues that Bunce was first in time and that principles of judicial comity obliged the Member in this matter to follow the authority of Bunce, on this question.
[3] [2020] NSWWCC 62 (Bunce).
[4] New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48, [98].
The appellant submits:
“The Appellant repeats its written submissions in the matter and submits that the decision in Bunce’s case should be preferred. The decision of Bunce was first in time and principles of judicial comity should have applied. The [appellant] submits that the removal by the legislature of the previous statutory definition which existed prior to 1 July 2010 was a clear attempt to broaden the definition of medical practitioner within the meaning of the Acts and that a link to a statutory definition as found by Member Rimmer was in error and inconsistent with the removal of such a definition.
The Appellant submits that a psychologist is a trained and registered professional engaged in the diagnosis and treatment of psychological disorders. In most psychological claims brought in the PIC, parties rely upon evidence from psychologists and the worker did so in the proceedings. The Appellant noted in its written submissions that the Courts had recognised the expertise of psychologists and that their opinions could be just as persuasive as the opinions of a psychiatrist. The Appellant submits that consistent with the decision in Bunce’s case, a psychologist is a medical practitioner within the meaning of the Workers Compensation Acts.”[5]
[5] Appellant’s submissions 28 May 2024, [4]–[5].
Before the Member, the appellant’s substantive submission on this question was dated 10 May 2024. This submission argues why the decision in Bunce is to be preferred to the decisions relied on by the respondent, which I will deal with later. I have closely considered that submission. The appellant argues that when the Parliament repealed s 59 of the 1987 Act, this evinced a clear intention to broaden the definition of “medical practitioner”. The appellant argues that the decision of Member Rimmer in Green v Seven Network (Operations) Ltd[6] should not be followed because the Member in Green relied upon the definition of medical practitioner, which was found within another Act, in circumstances where the Parliament had expressly removed that link.
[6] [2021] NSWPIC 458 (Green).
I accept that the question of whether a psychologist is a medical practitioner is an important question in the context of this dispute. I also accept that the respondent’s claim is a substantial one, at face value 24% WPI is a significant impairment.
I also note that there are conflicting decisions by members at first instance on this question and there is utility in having the controversy determined by a Presidential decision on this appeal. I would note, however, that these considerations only apply to the issues raised in Ground Three of the appeal. Grounds One and Two would not, of themselves, justify a grant of leave to appeal, indeed the submissions with respect to leave do not refer to the issues raised in these two grounds at all.
I do not consider the respondent’s submission on leave to be compelling or persuasive. The threshold ground is incorrect, the submission that the appeal is lacking in merit can be dealt with in deciding the confined question arising under Ground Three. The respondent maintains that no novel point of law is raised. I do not accept this submission, there are conflicting first instance decisions and no Presidential authority on this question. It is a matter that requires clarification for the remainder of the passage of this dispute through the Commission’s list as well as being of general application. The final objection at paragraph [8(d)] is in some respects speculative. Were I to uphold Ground Three, this argument would fall away.
In the circumstances, I grant the appellant leave to appeal Member Drake’s decision. Given I have granted leave, it is convenient to deal with the three grounds. My approach will be to decide the real question in dispute, which is Ground Three, and depending upon the outcome of that ground either proceed (or not) to decide the remaining grounds.
THE APPEAL
In dealing with the question of leave, I have set out (above) the appellant’s submissions on the appeal proper and will not repeat them.
In reply the respondent says as follows. The respondent has reviewed the various authorities[7] before submitting as follows:
“It is submitted that the legislative framework for regulating medical practice is a better guide to the question ‘who is a medical practitioner?’ than asking who is entitled to Medicare funding for treatment. To that extent, the first instance decision in Bunce would be regarded as looking to an irrelevant consideration in determining that question. The long title to the Human Services (Medicare) Act 1973 (Cth) is ‘An Act relating to the provision of certain services, and for other purposes’. Therefore, it is an act aimed at ‘certain services’ not only ‘medical services’. That Act should be read in conjunction with the Health Insurance Act 1973 (Cth), s 3 which defines the term ‘professional service’ to include a long list of things including ‘a prescribed medical service’ which is ‘rendered by or on behalf of a medical practitioner’, together with a long list of professions, the first of which is a ‘medical practitioner’ but several other practitioners are listed (which must, by definition not be medical practitioners). On that basis, Commonwealth funding for health care is not determinative of whether the service in question is being provided by a ‘medical practitioner’ although if one were to look to Commonwealth statutory arrangements for the financial aspects of medical treatment one would still conclude, using that legislation as a guide, that a medical practitioner is different from other health practitioners. Therefore, the fact identified by the arbitrator in Bunce, namely that the practitioner was registered to provide medical treatment under the Income Tax Assessment Act 1970 (Cth) appears to be, firstly, irrelevant and, secondly, contrary to the balance of authority. If Commonwealth funding were truly determinative of defining medical practice, then anything funded by the NDIS would be, in law, carried out by a medical practitioner, and that is clearly nonsense (it includes payment [to] taxi drivers and conceivably even sex workers; National Disability Insurance Agency v WRMF [2020] FCAFC 79).”[8]
[7] Respondent’s submissions 12 June 2024, [12]–[16].
[8] Respondent’s submissions 12 June 2024, [17].
CONSIDERATION – GROUND THREE
The real issue in this appeal, notwithstanding that three grounds have been advanced by the appellant, is whether a psychologist is a medical practitioner, and if the answer to this question is yes, the respondent is then obliged under s 119 of the 1998 Act to attend the examination and testing with Ms Tyler. This is the question addressed in Ground Three of the appeal and which was the focus of counsel’s submissions before me. The respondent’s submissions of 12 June 2024 recognise the importance of Ground Three[9] and proceed to deal with Ground Three first and at length. Approaching this appeal in this manner is consistent with the guiding principle found in s 42(1) of the Personal Injury Commission Act 2020. I therefore intend to proceed in that manner.
[9] At paragraph [9].
The appellant has pointed to various circumstances where a psychologist’s view is accepted for various purposes under the 1987 and 1998 Acts. For example, the appellant points to certificates of capacity issued by a treating psychologist being accepted by an insurer, and that a psychometric assessment can be used in a permanent impairment assessment. I would note that conducting such assessments is the province of a psychologist. The appellant has also identified that this assistance in assessing permanent impairment is found in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment at cl 11.6.
I accept the appellant’s submission that in certain cases, psychometric assessments may be of use to a more complete psychiatric assessment or opinion and produce better evidence for the Commission to consider. However, this benefit does not assist in the approach to the construction of s 119 of the 1998 Act.
Whilst I accept that these various circumstances exist, they do so for particular purposes. I would note that the usage of a psychologist’s work in these circumstances is not determinative of itself. In terms of permanent impairment, the testing results are more an aide to assist the determination of permanent impairment. Likewise, a certificate of capacity enables an insurer to make payments, but liability is not determined by such certificates.
This is to be contrasted to the process under s 119 of the 1998 Act. This provision sets out a mandatory requirement for an injured worker, which if not complied with can lead to the suspension of their weekly compensation entitlements. Frequently, a s 119 assessment may lead to a denial of ongoing liability by the employer. The opinion obtained by the employer under s 119 may be the moving piece of evidence in such a denial and be relied upon in any subsequent dispute in the Personal Injury Commission. It is a serious process with serious potential ramifications. Section 119 requires a claimant to submit to a physical examination with a medical practitioner chosen by their employer or their insurer, hence the legislature’s requirement that it be undertaken by a “medical practitioner”.
The appellant relies on s 71 of the 1998 Act, and the worker’s duty to co-operate that appears in that provision. This duty is broad and general. This is in contrast with the particular obligation pertaining to the particular circumstance of a mandatory attendance at a medical examination under s 119 of the 1998 Act. I do not accept that the s 71 duty in any way tempers or modifies the terms of the obligation contained in s 119 of the 1998 Act.
This question was examined at length in Green by Member Rimmer. Member Rimmer relevantly found as follows:
“46. Arbitrator Homan in Yu v Spotless Services Ltd [2018] NSWWCC 299 referred to the decision in Godfrey [v Wollongong Women’s Information Service Inc (1999) 19 NSWCCR 74] when she considered the meaning of the term ‘medical practitioner’ as it is used in s 119 of the 1998 Act and whether the term included a psychologist. Arbitrator Homan noted that the legislation governing the registration of health practitioners in New South Wales is the Health Practitioner Regulation National Law (NSW) 2009 and that statute draws a distinction between practitioners in the ‘medical’ profession and other health professions including ‘psychology’. Section 113 provides that the title ‘medical practitioner’ is a protected titled for use only by persons registered under [the Health Practitioner Regulation National Law (NSW) 2009] in the ‘medical profession’. In s 5, psychologist is defined to mean a person registered under that Law in the psychology profession.”
And:
“50. Both parties referred to Part 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition)(the Guidelines). At 11.2 the Guidelines provide:
‘Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method.’
51. At 11.6 the Guidelines provide:
‘It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI)’.
52. I accept that the Guidelines provide for clinical assessment which may include the results of appropriate psychometric testing performed by a qualified clinical psychologist. However, such test results are not mandatory requirement for an assessment to take place. I do not consider that the provisions in Pt 11 of the Guidelines really assists the respondent’s arguments.
53. The respondent referred to the amendments of Standard 32.5 of the SIRA Standards of Practice which provided that certificates of capacity may be obtained from a treating physiotherapist or psychologist in respect of the second and subsequent certificates only from 17 April 2020 for 12 months. Standard 32.5 was a standard introduced for managing claims during the COVID-19 pandemic and the first certificate still had to be obtained from the nominated treating doctor. Therefore, I do not consider that this amendment changed the meaning of the term ‘medical practitioner’ so as to include a psychologist for the purposes of s 119 of the 1998 Act.
54. Clause 75 of the Workers Compensation Regulation 2016 provided for a second or subsequent certificate as to work capacity to be given by a medical practitioner or if the worker was receiving medical or related treatment by a physiotherapist or psychologist, by a physiotherapist or psychologist. Clause 175(3) provides that: ‘This clause is to be repealed at the end of April 2022’. Again, the first certificate still had to be obtained from a medical practitioner and the regulation only applies for a limited period.
55. Professor Mattick, in a letter dated 12 October 2021, to the respondent’s solicitors stated that he was a registered health professional with the Australian Health Practitioner Regulation Agency (APRA), being an endorsed clinical psychologist. I note that Professor Mattick did not appear to describe himself as a medical practitioner in that letter. It is significant that Professor Mattick stated that he was registered with the Psychology Board of Australia, which keeps public national registers of registered psychologists. He made no reference to the Medical Board of Australia which is the board which keeps public national registers of all registered medical practitioners.
56. As noted the respondent argued that I should take a broad view in interpreting the term ‘medical practitioner’. However, the use of the term ‘medical practitioner’ in the legislation and Guidelines rather that terms such as ‘health practitioner’ or even ‘medical expert’, support the view that the term medical practitioner should be read to mean a person who is registered under the relevant law in the medical profession.
57. I agree with Arbitrator Homan that the term ‘medical practitioner’ as it is used in s 119 (and elsewhere in the statutory regime including s 282 of the 1998 Act and cl 44 of the Workers Compensation Regulation 2016), should be interpreted consistently with the Health Practitioner Regulation National Law NSW and the term ‘medical practitioner’ does not include a ‘psychologist’, that is, a person registered in the ‘psychology profession’. This approach is also consistent with the decision of Truss J in Godfrey [v Wollongong Women’s Information Service Inc (1999) 19 NSWCCR 74].
58. It follows, that s 119(1) could not be used by the respondent to compel the applicant to submit herself to examination by a psychologist. Accordingly, there was no failure by the applicant to submit herself for examination for the purposes of s 119(3) and no suspension of the applicant’s right to recover compensation. I decline to make the order sought by the respondent pursuant to s 119(3).”
To the contrary, in Bunce, Arbitrator Wynyard approached the question in the following manner:
“101. Mr Baker submitted that Mrs Bunce had not established that the treatment had been given at the direction of a medical practitioner, as Ms Patton, who had given the direction, was a psychologist. Ms Patton was not a medical practitioner, Mr Baker asserted, as she was not authorised to give prescriptive medication. No authority was given for that proposition, and indeed the term ‘medical practitioner’ has not been defined in either the 1987 or the 1998 Acts.
102. When considering the term in 1997, Burke J said in Bartolo v Western Sydney Health Service [1997] NSWCC 1:
‘‘Medical practitioner’ is defined to mean a medical practitioner registered under the law of a State or Territory of the Commonwealth.’
103. However, His Honour did not refer to the authority for that proposition, and it may be that such a definition is no longer apposite. In any event, I am satisfied that it was the letter of 7 March 2018 from Ms Patton that Mrs Bunce relied upon to make her claim, and that it was therefore Ms Patton who gave the direction. Again, in regard to the term ‘direction’ Burke J said in Bartolo:
‘‘Direction’ in the context of paragraph (b), in my view, has much the same connotation as the more commonly used ‘referral’. Direction usually connotes an order, requirement, command or instruction. The doctor/patient relationship has not as yet come to the stage where the doctor can order the patient to do anything. He advises, and, in this type of situation, if the advice is accepted, he refers the patient for appropriate tests, investigations or active treatment.’
104. I accept that the provider number supplied by Ms Patton is an indication that she was duly registered pursuant to the Commonwealth Income Tax Assessment Act 1970 for the purposes of psychological treatment under the Medicare system, and that I can infer that she was a medical practitioner for the purposes of s 59(b).
105. I am satisfied that the treatment was therapeutic. Although Mr Baker submitted that it was not ‘medical’ treatment as described in the sub-heading of the s 59 definition, the use of the word ‘therapeutic’ at s 59(b) puts the matter beyond doubt. Again, all the medical professionals agreed that having an assistance dog was therapeutic to Mrs Bunce’s psychological condition. It is correct that A/Prof Robertson did not address the terms of s 59(b), but as I have indicated, he found that Mrs Bunce’s assistance dog performed a therapeutic role in her being able to travel confidently.”
For the reasons that I will now recount, I prefer the approach taken by Member Rimmer in Green. The approach to the obligation in s 119 of the 1998 Act is a textual one.[10] It is clear that the words in s 119 of the 1998 Act provide that the obligation only arises with respect to an examination with a medical practitioner.
[10] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28.
In particular, I am much persuaded by Member Rimmer’s approach to the Health Practitioner Regulation National Law (NSW) 2009 (2009 Act). The 2009 Act has a number of objectives, one of which is to establish a national registration and accreditation scheme to regulate all health practitioners (s 3) with the protection of the health and safety of the public being the paramount consideration (ss 3A and 3B). Section 5 is the definition section. A “health practitioner” is given a very wide definition, encompassing everybody practising in a health profession before moving into more specific definitions. A “medical practitioner” is a person registered under this law in the medical profession. However, a “psychologist” is given a separate definition as being a “person registered under this Law in the psychology profession.”
These definitions, as they appear, provide for separate requirements for registration. If a registered psychologist was a medical practitioner under the 2009 Act, there would be no need for the separate definition. Clearly, the legislative intent was to provide for different requirements to be satisfied to become registered as a medical practitioner as opposed to a registered psychologist.
This is contrary to the appellant’s submissions. Giving the definition of a “medical practitioner” a broad definition, as submitted, is not consistent with the legislative intent of the 2009 Act. Indeed, the appellant’s approach would in fact widen the potential class of person said to be a medical practitioner such that the class could not be identified or related to an ascertainable class. The key under the 2009 Act is registration. I am fortified in the view that the Parliamentary intention was not to broaden the definition when one sees the 2010 Act. The 2010 Act follows on from the 2009 Act and makes a number of consequential amendments to other legislation, including the repeal of s 59 of the 1987 Act, to harmonise it with the new scheme enshrined in the 2009 Act. It is clear that the Parliamentary intention, contrary to the appellant’s submission, was that the 2009 Act and its definitions are to govern this situation.
The appellant’s reliance on Arbitrator Wynyard in Bunce is misplaced. In Bunce, it is apparent that the Arbitrator was not taken to the 2009 Act. Rather the Arbitrator noted the provider number supplied by the psychologist concerned as an indication of registration under the Commonwealth Income Tax Assessment Act 1970 (1970 Act) for the purposes of treatment under the Medicare system, and inferred that the person was a medical practitioner. The remarks of Burke J in Bartolo v Western Sydney Health Service,[11] referred to and dismissed by Arbitrator Wynyard, assume greater resonance given the passage of the 2009 Act. Burke J was referring to a medical practitioner registered under the law of a state or Commonwealth – which is precisely the function of the 2009 Act. Burke J’s remarks in Bartolo remain good law. The appellant has criticised Member Rimmer’s reliance on “another Act”.[12] Arbitrator Wynyard’s opinion was linked to the 1970 Act in terms of registration for Medicare purposes, before inferring that the psychologist was a medical practitioner. This is a far less satisfactory basis than that adopted by Member Rimmer, which actually engages with the registration process of medical practitioners and psychologists since the 2009 Act and is consistent with what Burke J said in Bartolo on this subject.
[11] [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo).
[12] Appellant’s submissions to the Member 10 May 2024, [6].
The appellant pointed to various problems which may arise from a narrow approach being taken to the definitional question. If such an outcome were to arise, then it is a matter for the Parliament to consider rather than for this decision to attempt to fashion a solution. In my view the statutory obligation in s 119 of the 1998 Act is clear and unambiguous. A medical practitioner must undertake the examination and the definition is found in the 2009 Act.
The appellant also complains that it should be afforded procedural fairness, the inference being that a failure of the respondent to undertake the psychometric assessment would produce that result. I asked whether the respondent was relying upon psychometric assessment results and was told no. I therefore do not see how in that circumstance any question of procedural fairness arises. The appellant says the assessment would aid its psychiatrist's opinion. Were the respondent relying on such evidence, it would doubtless be available to be supplied to the appellant’s retained psychiatrist. The procedural fairness issue does not arise.
Member Rimmer’s decision is to be preferred.
I would remark that there is no evidence before me, and none that I can see that was before the Member, about Ms Tyler’s registration, namely was she registered as a psychologist or a medical practitioner? I asked the appellant’s legal representative at the oral hearing on 14 June 2024 about Ms Tyler’s registration and was advised that she was a psychologist.
I therefore reject the appellant’s submission that a psychologist is a medical practitioner. As a consequence of this decision, it follows that the respondent is not obliged to attend the examination with Ms Tyler.
Ground Three has not been established. Ground Three is dismissed.
As a result of this decision, it is not necessary for me to deal with Grounds One or Two of the appeal. Even assuming that both were upheld, the decision in relation to Ground Three has effectively dealt with and finalised the real issue in dispute between the parties.
DECISION
I grant the appellant leave to appeal the decision of Member Drake dated 15 May 2024.
The appeal is dismissed.
I confirm the Certificate of Determination dated 15 May 2024.
The appellant can make application for the relief sought in paragraph [2.10.2] of the appellant’s written submissions dated 28 May 2024 on remitter to the Member. Generally, it is my view that such directions should be made if the material sought relates to the real issues in the dispute or otherwise will aid the parties and the Member to do justice in the matter.
I remit the matter to the same Member for further directions regarding the dispute.
Judge Phillips
PRESIDENT
17 June 2024
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