Cootamundra-Gundagai Regional Council v McInerney
[2024] NSWPICPD 28
•16 May 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Cootamundra-Gundagai Regional Council v McInerney [2024] NSWPICPD 28 |
| APPELLANT: | Cootamundra-Gundagai Regional Council |
| RESPONDENT: | Marianne McInerney |
| INSURER: | State Cover Mutual Limited |
| FILE NUMBER: | A2-W5159/23 |
| PRESIDENTIAL MEMBER: | Acting Deputy President Kylie Nomchong SC |
| DATE OF APPEAL DECISION: | 16 May 2024 |
ORDERS MADE ON APPEAL: | 1. I order that the requirement of rule 124 in relation to the filing and service of the Notice of Opposition be dispensed with and that the respondent worker be permitted to lodge its Notice of Opposition and submissions by 6 February 2024. 2. If it is necessary, leave to appeal the Member’s interlocutory decision dated 11 October 2023 pursuant to s 352(3A) of the 1998 Act is granted. 3. The appeal is upheld. 4. The decision of the Member dated 11 October 2023 is revoked and in substitution of that decision, it is determined that it is in the interests of justice for the un-notified issues to be determined by the Commission. 5. The determination of the un-notified issues as set out in paragraph [246] below are remitted to a different non-presidential Member of the Commission. 6. The Certificate of Determination dated 23 November 2023 is revoked. |
| CATCHWORDS: | WORKERS COMPENSATION – Section 119 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – refusal of worker to attend Independent Medical Examination arranged after issuance of notice pursuant to section 78 of the 1998 Act – section 289A of the 1998 Act – section 44A of the Workers Compensation Act 1987 – suspension of weekly payments for failure to attend Independent Medical Examination – Part 7 of the Workers Compensation Guidelines – Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 discussed and applied |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Stockley, counsel | |
| Kemp & Co Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| McNally Jones Staff Lawyers | |
| DECISION UNDER APPEAL: | McInerney v Cootamundra-Gundagai Regional Council [2023] NSWPIC 628 |
| MEMBER: | Ms D Benk |
| DATE OF MEMBER’S DECISION: | 23 November 2023 |
INTRODUCTION
The respondent worker (Ms McInerney) was employed by the appellant (Cootamundra-Gundagai Regional Council) as an executive assistant to the general manager between about November 2016 and June 2022.
The respondent worker alleges that she suffered psychological injuries within the meaning of s 11A(3) of the Workers Compensation Act 1987 (1987 Act) and she lodged a claim with a date of injury of 29 May 2022 and also a claim in respect of a disease dated 1 June 2017.
The appellant’s insurer sought and obtained a report from Dr Hinze, the respondent worker’s nominated treating doctor, on 26 June 2022.[1]
[1] Reply to Application to Resolve a Dispute (Reply), pp 79–80.
On 28 June 2022, the appellant accepted provisional liability for medical expenses and weekly payments.[2]
[2] Reply, pp 198–215.
The appellant requested the respondent worker to undergo an independent medical examination (IME) on four occasions. The first three requests were made on 18 August 2022,[3] 19 October 2022[4] and 18 January 2023.[5] A further proposal for an IME was made during the conciliation teleconference on 18 August 2023. All of the requests were refused on the grounds that liability had been declined and that the appellant’s insurer had not complied with Pt 7 of the Workers Compensation Guidelines (Guidelines). However, it should be noted that at the time of the first request on 18 August 2022, liability had not yet been declined.
[3] Application to Resolve a Dispute (ARD), pp 90–92.
[4] ARD, pp 94–96.
[5] ARD, pp 99–105.
On 19 August 2022, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). In that notice, the appellant disputed injury and, in the alternative, stated that it relied on s 11A of the 1987 Act to the effect that if there was a psychological injury, it had been caused by reasonable actions taken or proposed to be taken by the employer.[6] The notice stated that the respondent worker was obliged to attend the then upcoming IME and cited s 119 of the 1998 Act.[7]
[6] Reply, pp 1–30.
[7] Reply, p 28 (3rd paragraph).
Section 119 of the 1998 Act provides:
“119 Medical examination of workers at direction of employer
(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(2) A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(3) If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination—
(a) the worker’s right to recover compensation under this Act with respect to the injury, or
(b) the worker’s right to the weekly payments,
is suspended until the examination has taken place.
(4) A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the Workers Compensation Guidelines or at more frequent intervals than may be prescribed by the Workers Compensation Guidelines.
(5) The regulations may make provision for or with respect to requiring an employer or insurer to provide a worker, a worker’s legal representative or any other person, within the period required by the regulations, with a copy of any medical opinion or report furnished to the employer or insurer by a medical practitioner in connection with an examination of the worker pursuant to a requirement under this section.
(6) If an employer or insurer fails to provide a copy of an opinion or report as required by the regulations under subsection (5)—
(a) the employer or insurer cannot use the opinion or 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 opinion or report for any other purpose prescribed by the regulations for the purposes of this section, and
(b) the opinion or report is not admissible in proceedings on such a dispute before the Commission, and
(c) the opinion or 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.”
On 18 January 2023, at the time of issuing the request to attend the third proposed IME, the appellant expressly advised the respondent worker of the terms of s 119(1)–(3) of the 1998 Act and asserted that there had been compliance with the Pt 7 of the Guidelines.[8] However, on 23 January 2023, the respondent worker’s solicitor advised the appellant that she would not be attending the proposed IME on the grounds of non-compliance with the Guidelines including because there was no unavailability or inadequacy of the information from Dr Hinze.[9]
[8] Reply, pp 510–516 at 511–512.
[9] Reply, p 518.
On 10 February 2023, the appellant wrote to the respondent worker’s solicitor denying any failure to comply with the Guidelines and advised that a supplementary s 78 notice would be issued which raised additional disputes under s 119(3) of the 1987 Act and s 44A(6) of the 1987 Act.[10]
[10] Reply, pp 519–521.
On 18 July 2023, the respondent worker filed an Application to Resolve a Dispute (ARD).[11]
[11] ARD, pp 1–9.
On 9 August 2023, the appellant issued a further s 78 notice which stipulated that, in addition to the matters in dispute, notified in the previous s 78 notice dated 19 August 2022, the insurer was asserting that the respondent worker’s potential right to recover compensation and/or weekly payments was suspended by reason of the operation of s 119(1) and (3) of the 1998 Act due to her refusal to attend an IME. In the alternative, the notice advised of an additional ground of dispute on the basis that the potential right to weekly payments is suspended under s 44A(6) of the 1987 Act due to the respondent worker’s refusal to attend an IME for the purposes of a work capacity assessment.[12]
[12] Reply, pp 31–43.
On 10 August 2023, the appellant filed a Reply which included both the original s 78 notice and the further s 78 notice served on 9 August 2023.[13]
[13] Reply, pp 1–548.
On 18 August 2023 a preliminary conference was held and the s 119 issue was raised. As a result, on 21 August 2023 a direction was issued by the Member directing the parties to file and serve submissions in relation to any application with respect to matters arising from
s 119 of the 1998 Act and that that preliminary matter was listed for conciliation and arbitration on 11 October 2023.The parties filed and served written submissions.[14]
[14] Appellant’s submissions dated 8 September 2023, respondent’s submissions dated 22 September 2023 and appellant’s submissions in reply dated 28 September 2023.
In its primary submissions, the appellant made an application under s 289A(4) of the 1988 Act seeking leave to have the issues raised in the further s 78 notice dated 9 August 2023 heard and determined by the Commission.
The preliminary matter concerning whether leave should be granted under s 289A(4) of the 1998 Act (and the underlying IME issue) came before the Member on 11 October 2023. At that time, each of the parties made further oral submissions on the matter. The Member delivered an ex tempore decision in which leave was refused.[15]
[15] Transcript 11 October 2023 (T), pp 40–44.
Initially, an appeal against that interlocutory decision was filed but was later withdrawn.
The substantive matter then came before the Member on 1 November 2023.
On 23 November 2023, a Certificate of Determination was issued by the Commission in the following terms:
“1. The [respondent] suffered a psychological injury in the course of her employment with the [appellant] with a deemed date of injury 29 May 2022.
2. The [respondent’s] employment was the main contributing factor to her injury.
3. The [respondent] has had no current work capacity since 29 May 2022.
4. The [appellant] to pay the [respondent] weekly compensation in accordance with the Workers Compensation Act 1987 as follows:
(a) From 29 May 2022 to 28 August 2022 the sum of $1,711 per week pursuant to s 36, and
(b) From 29 August 2022 to date and continuing the sum of $1,440.84 per week (as indexed).
5. The [appellant] is to have credit for any payments paid during that period.”
On the same day, the Member issued a Statement of Reasons.
On 19 December 2023, the appellant lodged an appeal on three grounds, all of which are directed to the interlocutory decision on 11 October 2023, which the appellant says vitiated the outcome of the substantive hearing. The grounds allege that the Member erred in the exercise of the discretion on the application pursuant to s 289A(4) of the 1988 Act by:
Ground One: Failing to take into account relevant considerations, namely:
(a) the respondent worker’s consent to the s 119 matter being raised;
(b) the degree of difficulty or complexity to which the un-notified issues gave rise;
(c) when the insurer notified that it wished to contest any un-notified issue;
(d) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(e) any prejudice that may be occasioned to the worker;
(f) the merit and substance of the issue, and
(g) the circumstances in which the worker was first made award of the un-notified issue which is now sought to be raised.
Ground Two: Taking into account an irrelevant consideration, namely prejudice to the respondent worker without identifying that prejudice.
Ground Three: Founding the decision on an error of fact, namely the existence of prejudice to the respondent worker.
ON THE PAPERS
I have read the material in this matter including the written submissions of both parties. I have read the transcript and considered the Member’s reasons.
The appellant made no submissions as to whether it is appropriate for the appeal to be determined on the basis of the documents and submissions, but noted that it “does not request an oral hearing”. The respondent sought an oral hearing.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
Pursuant to s 52(3) of the Personal Injury Commission Act 2020 (2020 Act), I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or oral hearing and that this is the appropriate course.
THRESHOLD MATTERS
There is no dispute between the parties that the monetary and threshold requirements as to time pursuant to subss 352(3) and (4) of the 1998 Act have been met.
LEAVE IN RELATION TO INTERLOCUTORY ASPECT OF THE DECISION
Neither party has asserted that leave to appeal is necessary. However, the appellant proceeds on the basis that by reason of the alleged errors of law and fact in the interlocutory decision on 11 October 2023, the question as to the operation of s 119(3) of the 1998 Act and s 44A(6) of the 1987 Act were not decided and should have been. The appellant asserts that those issues, if resolved in favour of the appellant, would have deprived the Commission of jurisdiction to make the determination on 23 November 2023.
Accordingly, it appears to me that the gravamen of the appeal is really about the interlocutory finding and that I should therefore assess, for abundant caution, whether leave should be granted to appeal that decision. In that context, I have had regard to the decisions in Licul v Corney[16] and DGL (Aust) Pty Limited v Martino.[17]
[16] [1976] HCA 6; 180 CLR 213.
[17] [2023] NSWPICPD 30 (DGL).
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant’s case is that it has been denied the ability to rely on both a procedural defence (being the suspension of rights to compensation because of the operation of s 119(3) of the 1998 Act and s 44A(6) of the 1987 Act) and a substantive defence on the merits, in particular to have an IME report which goes to the application of s 11A of the 1987 Act to the respondent worker’s claim.[18]
[18] Appellant’s submissions dated 19 December 2023, [22].
The respondent worker, on the other hand, contends that it would be futile for the s 119(3) matter to be re-ventilated.
This basis of the appeal however is straightforward. It is founded on allegations which are central to the exercise of a discretion under the legislation, being those enunciated by the High Court in House v R,[19] which prescribe that if the decision-maker “acts upon a wrong principle, if he [/she] allows extraneous or irrelevant matters to guide or affect him [/her], if he [/she] mistakes the facts, if he [/she] does not take into account some material consideration, then his [/her] determination should be reviewed.”
[19] [1936] HCA 40; 55 CLR 499 (House v R).
I am of the view that an issue of principle arises as to whether the Member properly considered the question of leave under s 289A(4) of the 1998 Act and that it is necessary and/or desirable for the interlocutory decision to be reviewed for the proper and effective determination of the dispute.
In the event that leave is required, I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.
LATE FILING OF OPPOSITION TO THE APPEAL
Pursuant to rule 124 of the Personal Injury Commission Rules 2021 (Rules), a Notice of Opposition to an appeal is required to be lodged within 28 days of being served with the appeal application. The Notice of Opposition should have been lodged by 5 pm on
5 February 2024.According to the respondent’s submissions on this matter,[20] the documents were not lodged until about 8.50pm and then, with the wrong matter number and in the absence of a Form 9A. The respondent’s submissions were, however, served on the appellant at about 10.37pm that night. The submissions were then re-lodged with the correct matter number the following morning and a Form 9A was lodged.
[20] Explanation as to the late filing of the respondent’s submissions on appeal dated 8 February 2024.
The appellant submits that, whilst the respondent has provided an explanation about the mis- filing of the documents under the wrong matter number, there is no explanation as to why the documents were not filed prior to the 5.00 pm deadline on 5 February 2024. It submits the respondent worker’s submissions on the appeal should not be accepted.
38.Rule 6(1) of the Rules permits the Commission to dispense with a requirement in the Rules if it is satisfied it is appropriate to do. Rule 6(4) allows that to occur before or after the occasion for compliance with the requirements of the Rules.
In making my determination, I take into account the guiding principle set down in s 42(1) of the 2020 Act which is framed as being to achieve the just, quick and cost effective resolution of the real issues in the proceedings.
I also note that s 43 of the 2020 Act states:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) …
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
I note that whilst the appellant objects to the Commission receiving the late submissions, it does not point to any prejudice that it has suffered by reason of receiving the submissions some 5 or 6 hours later than it should have, or even the next morning. I also note that the appellant was able to and did respond to the respondent’s submissions in its reply submissions.
There is no egregious conduct here and accordingly, I find it is appropriate to permit the receipt of the respondent worker’s submissions and move forward to the determination of the appeal.
I order that the requirement of r 124 in relation to the filing and service of the Notice of Opposition be dispensed with and that the respondent worker be permitted to lodge its Notice of Opposition and submissions by 6 February 2024.
PRINCIPLES ON APPEAL
In terms of the ambit of the appeal, the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[21] that by reason of s 352(5) of the 2020 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Member. There can be no appellate intervention without a finding that there has been error.
[21] [2022] NSWCA 138, [11].
The nature of an appeal was enunciated by Roche DP in Raulston v Toll Pty Ltd.[22] In that matter, the general principles applicable to appeals under s 352 were helpfully summarised, including that, by reference to Whiteley Muir & Zwanenberg Ltd v Kerr,[23] whilst an arbitrator (now member) may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[24] which is dealt with in more detail later in this decision.
[22] [2011] NSWWCCPD 25; 10 DDCR 156.
[23] (1966) 39 ALJR 505, 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).
[24] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).
THE EVIDENCE
When looking at the ‘evidence’ in this matter, I restrict my consideration to the material available to the Member in relation to the matters relevant to the exercise of the discretion under s 289A(4) of the 1998 Act. I do so because this is the threshold question in this matter. If the question of leave has been properly determined, then no part of the appeal is directed to the substantive findings. If the question of leave has not been properly determined, then it follows that the decision which followed must necessarily fall away. It is therefore not necessary for the purposes of this appeal for me to traverse the materials that the Member relied on in the substantive decision.
The first matter to note is that this is a claim for psychological injuries said to have occurred during the course of the respondent worker’s employment with the appellant within the meaning of s 11A(3) of the 1987 Act, and the respondent worker lodged a claim with a date of injury of 29 May 2022 and also for a disease with a date of injury of 1 June 2017.[25]
[25] ARD, “Injury Details”.
On 23 June 2022, the appellant’s insurer sought medical records and a report from Dr Hinze, the respondent worker’s nominated treating doctor and enclosed the respondent worker’s SIRA certificate which included an authority for the exchange of information.[26]
[26] Reply, p 443.
On the same day, the appellant’s insurer wrote to Dr Hinze and posed 8 questions to be answered including, at question 2, the question “What events led to the development of that diagnosis?” referring to the diagnosis in the SIRA certificate of adjustment disorder with anxiety and depression.
I refer to this question in particular because, as will be seen when looking at the correspondence, part of the basis for the appellant’s request for an IME was to address a contention that any psychological injury suffered by the respondent worker was due to reasonable action taken or proposed to be taken by the employer with respect to discipline or the provision of employment benefits, and therefore enable it to rely on s 11A(1) of the 1987 Act.
On 26 June 2022, Dr Hinze provided a medical report responding to the questions and in answer to question 2 advised that the respondent worker had been subjected to ongoing workplace bullying and stress since 2016 and had also witnessed ongoing unethical behaviours and nastiness between staff and councillors at her workplace.[27]
[27] Reply, pp 444–445.
No follow up requests were made of Dr Hinze in relation to that issue at that time.
On 28 June 2022, the appellant accepted provisional liability for medical expenses and weekly payments.[28]
[28] Reply, pp 198–215.
On 18 August 2022,[29] the appellant wrote to the respondent worker requesting that she attend an IME with Dr Abhishek Nagesh, Psychiatrist, on 21 September 2022. The letter was in a standardised form and advised the respondent worker that the appellant would evaluate the findings and recommendations of the report arising out of the IME and stated that should the decision be to dispute liability or reduce benefits then the respondent worker would be formally advised in writing and provided with a copy of the report. At the end of the letter there was reference to ss 119 and 125 of the 1998 Act and Pt 7 of the Guidelines.[30]
[29] ARD, pp 90–92.
[30] Reply, pp 446–448.
On 19 August 2022, the respondent worker sent an email advising that she would do her best to attend the examination.[31]
[31] Reply, p 455.
On 19 August 2022, the appellant issued a s 78 notice disputing injury and stating that, in the alternative, it relied on s 11A(1) of the 1987 Act.[32] As noted above, included in that notice was a statement that the respondent worker was obliged to attend the then upcoming IME on 21 September 2022 and made reference to s 119 of the 1998 Act.[33] No doubt due to the fact that the respondent worker had not yet declined to attending the proposed IME, that did not form part of the disputed matters in the notice.
[32] Reply, pp 1–30.
[33] Reply, p 28 (3rd paragraph).
On 2 September 2022, the respondent worker emailed the appellant and stated that she had been advised by her solicitor not to attend the appointment as her claim had been declined.[34]
[34] Reply, p 455.
The appellant’s insurer responded immediately stating that under s 119(1) of the 1998 Act, “[a] worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.”[35] A short time later, the appellant’s insurer sent a more comprehensive email to the respondent worker noting that the IME was referred to in the s 78 notice; setting out subss 119 (1), (2) and (3) of the 1998 Act; referring to the decision in Chatto v Transfield Services (Australia) Pty Ltd,[36] in which the Arbitrator directed a worker to attend a medico-legal specialist even though the dispute notice had been issued, and concluding by saying that if the respondent worker thought that the requirement to attend the IME was unreasonable, then she was required under the Guidelines to advise the insurer.[37]
[35] Reply, p 459.
[36] [2016] NSWWCC 16 (Chatto).
[37] Reply, pp 457–458.
On 3 September 2022, the respondent worker sent an email to the insurer saying her solicitor would respond.[38]
[38] Reply, p 461.
On 8 September 2022, Mr Richard Brennan, a principal in the law firm representing the respondent worker, sent an email to the insurer and referred to the decision in Coleman v Ministry of Health (2767/20)[39] and set out a quote which stated: “Having denied liability, the respondent indicated that it had made a medical appointment with Dr Young for the worker and would reconsider any liability issues on receipt of the report. Understandably, the applicant did not attend that medical examination.” Mr Brennan stated that the facts in Chatto were different and that the decision “should have been appealed”. He concluded by saying that the requirement to attend the IME was unreasonable because liability had been declined and the appointment had not been made in accordance with Pt 7.1 of the Guidelines. Mr Brennan did not articulate what aspect of the guidelines he believed had not been complied with.[40]
[39] No other citation was given.
[40] Reply, pp 467–468.
The appellant’s insurer responded on the next day (9 September 2022) asserting that there was an obligation under s 119 of the 1998 Act for the worker to attend the IME. The insurer asserted that Coleman v Ministry of Health did not amount to binding authority. The insurer stated that Mr Brennan had not pointed out in what respects the IME arrangements had breached Pt 7 of the Guidelines and asked him to do that. The insurer then advised that another IME would be arranged and stated:
“If your client objects to this further appointment, we will issue a supplementary s 78 notice which raises a ground of dispute under sections 119(3) of the 1998 Act and section 44A(6) of the 1987 Act and will apply for any future Commission proceedings to be struck out while ever your client fails to comply with her statutory obligation to attend this examination.”[41]
[41] Reply, p 467.
On 12 September 2022, Mr Brennan sent an email to the appellant’s insurer stating that ‘his’ (sic) most recent presidential decision established that a worker must not attend an IME otherwise than in accordance with the Guidelines and cited UNSW v Lee.[42] Mr Brennan stated that the proposed appointment with Dr Nagesh offended the whole of Pt 7.1 of the Guidelines except the last paragraph.[43]
[42] [2021] NSWPICPD 4 (Lee).
[43] Reply, p 473.
On 19 October 2022[44] the appellant’s insurer sent a letter to the respondent worker advising her that another IME had been arranged, this time with Dr Clayton Smith, Psychiatrist, on 16 November 2022. That letter contained the same information as the letter sent on 18 August 2022 in relation to the then proposed appointment with Dr Nagesh.
[44] ARD, pp 94–96.
On 27 October 2022, Mr Brennan sent an email to the appellant’s insurer advising that the requirement to attend the IME with Dr Smith was unreasonable for the same reasons contained in his emails dated 2 and 8 September 2022. He concluded by saying that it was unreasonable because liability had been declined and that the current IME had not been arranged in accordance with s 119 of the 1998 Act and the Guidelines particularly Pt 7.1, save for the last paragraph. Mr Brennan did not otherwise elucidate what it was about the request that was non-compliant with the Guidelines.[45]
[45] Reply, p 483.
On 3 November 2022, the appellant’s insurer wrote to Dr Hinze seeking a further report. This letter summarised the information that had been obtained from the respondent worker’s former co-workers, attached their statements as well as the clinical records of the Cootamundra Medical Centre from 2000 to 2022. The letter set out 12 questions to be answered and stated that the doctor could charge a fee for the preparation of the report and a fee for reviewing the volume of material that had been provided.[46] Question 6 was directed squarely to s 11A(1) of the 1987 Act and asked the doctor to opine whether the predominant cause of the worker’s current incapacitating psychological injury was employer action with respect to a proposed transfer or the request for the worker to attend a fitness for work assessment.[47] The rest of the questions were directed at diagnosis, other possible causal stressors and the worker’s fitness for any type of work.
[46] Reply, pp 484–509.
[47] Reply, p 508.
Dr Hinze never responded to this request.
On 18 January 2023,[48] the appellant’s insurer sent a lengthy letter to the respondent worker advising that another appointment had been arranged for an IME with Dr Nagesh, psychiatrist, on 8 February 2023.
[48] ARD, pp 99–105.
In that letter, the insurer referred to the s 78 notice dated 19 August 2022. It set out in full the email from Mr Brennan dated 8 September 2022 and stated that this was “one last opportunity to comply” and attend the further IME. It set out sub-ss 119(1) to (3) of the 1998 Act.
The letter went on to address the arguments that had been put forward by Mr Brennan and stated that the appellant’s insurer disagreed with the proposition that an IME could not be required if a dispute notice had been issued. The letter stated that Mr Brennan had not provided any case law which supported that contention, noting that the decision referred to by Mr Brennan (Coleman v Ministry of Health) was unreported and the appellant’s insurer rejected that that case stood for the proposition asserted by Mr Brennan.
The letter also set out a quote from the case of Dunn v Westruss Manufacturing Pty Limited[49] as follows:
“Section 119 is triggered not by the existence of a ‘dispute’ or a ‘medical dispute’, but rather by two alternative positions set out in sub-sections s 119(1) and s 119(2) of the 1998 Act, these being ‘notice of an injury’ or ‘receiving weekly payments of compensation’. Either or both of those preconditions exist in this matter and therefore the applicant’s right to recover compensation (including under s 66 of the 1987 Act) is suspended and cannot proceed at this stage.”
[49] [2022] NSWPIC 379 (Dunn), [27].
The letter then went on to say that since the respondent worker had provided a notice of injury, the obligation in s 119(1) to attend an IME was triggered.
The letter then addressed Pt 7 of the Guidelines. In particular, it stated that Pt 7.1 required the insurer to demonstrate that information from the treating medical practitioner was inadequate, unavailable or inconsistent and to show evidence of contact to try and resolve the issues with the nominated treating doctor. The letter referred to and attached a copy of the letter to Dr Hinze dated 3 November 2022 and stated that no response had been received after more than two months. Accordingly, the letter stated that the insurer was entitled to regard the information from the treating medical doctor as “unavailable” or “inadequate” and therefore the requirements of Pt 7.1 of the Guidelines had been satisfied.
The letter then stated that, in compliance with Pt 7 of the Guidelines, the following further information about the scheduled appointment was provided:
(a) that the reasons for the IME examination were to assess the respondent worker’s current condition and diagnosis, determine the contribution of work incidents, tasks, conversations and meetings to the alleged injury, assess current work capacity and capacity for other duties, determine whether the need for medical treatment results from the alleged injury and is reasonably necessary;
(b) section 119(1) of the 1998 Act imposes an obligation to attend the IME as does s 44A(5) of the 1987 Act, and
(c) the insurer believed that the appointment was reasonable given that her treating GP had not responded to the request for a report for over 2 months.
On 23 January 2023 Mr Brennan sent an email to the appellant’s insurer referring (on three occasions) to the letter to Dr Hinze dated 3 November 2022 as a “short novel”. Mr Brennan then proceeded to make generalised comments about problems affecting GPs under the current Medicare regime and referred to a recent newspaper article. Mr Brennan asserted that a treating doctor could not possibly be expected to read what was sent, let alone respond. There was no indication in Mr Brennan’s email that he had spoken to Dr Hinze and that the matters set out by Mr Brennan were the reasons that Dr Hinze had not responded to the appellant’s request for a further report.
Mr Brennan’s email asserted that the issues required to be dealt with by Dr Hinze were more than adequately addressed in Dr Hinze’s report dated 10 October 2022 and he submitted that there was therefore no unavailability or inadequacy of the information.
Mr Brennan then stated, again without providing any particulars, that the insurer had still not complied with the Guidelines. Mr Brennan concluded by saying that the request to attend the proposed IME was unreasonable.[50]
[50] Reply, p 518.
The respondent worker did not attend the appointment.
The report of Dr Hinze dated 10 October 2022 referred to by Mr Brennan was provided in response to a request from Mr Brennan[51] but that request to Dr Hinze is not contained in the materials. That report does not address the s 11A(1) issue which was asked for by the appellant’s insurer in Question 6 of its letter dated 3 November 2022.
[51] ARD, pp 232–233.
On 10 February 2023 the appellant’s insurer wrote to Mr Brennan by letter[52] and stated that:
(a) the letter to Dr Hinze dated 3 November 2022 was drafted in order to give Dr Hinze a full understanding of all relevant evidence;
(b) the estimated reading time would be in the order of one hour in total;
(c) the questions directed to Dr Hinze concerned capacity for work, injury management and rehabilitation and that a short answer in response to each of those matters would have sufficed. It further stated that the report dated 10 October 2022 did not answer a number of the questions that were contained in its letter dated 3 November 2022. As such, the appellant stated, the response from the treating doctor is still unavailable and or inadequate;
(d) additional file review fees were to be provided on top of the usual examination and report fee;
(e) there had been no response from Dr Hinze, and no attempt to negotiate the terms on which she would be prepared to provide the report;
(f) there were no limitations or constraints in Pt 7 of the Guidelines as to the length of letters to treating doctors or the number of questions that can and cannot be asked, and
(g) the requirements of Pt 7 of the Guidelines had been complied with.
[52] Reply, pp 519–520.
The letter concluded with the following passage:
“We will proceed to do what we said we would do in our letter dated 18 January 2023. We will issue a supplementary section 78 notice on your client, care of your firm, which raises additional disputes under section 119(3) of the 1998 Act and section 44A(6) of the 1987 Act. We will ventilate these additional grounds of dispute in the Commission at the appropriate time. This will inevitably delay the progress of the proceedings. We won’t be making any settlement offers until your client attends the outstanding independent medical examination.”
On 13 February 2023, Mr Brennan sent an email to the appellant’s insurer.[53] In it, Mr Brennan stated that he had never seen anything like the correspondence sent to the doctor and that the appellant’s insurer could not possibly expect the doctor to respond. Again, there is nothing in the email to suggest that Mr Brennan had actually spoken to Dr Hinze. The email asserted that the issues will be decided by the Commission based on the evidence, not Dr Hinze and that Dr Hinze’s previous report answers questions relevant to the issues raised by the s 78 notice. Mr Brennan then went on to make certain comments about the way in which other practitioners advise their clients and the drafting of the legislation. None of those latter arguments were relevant.
[53] Reply, p 522.
On 18 July 2023, the respondent worker filed the ARD.[54]
[54] ARD, pp 1–9.
On 9 August 2023, the appellant issued an amended s 78 notice which included notification that the respondent worker’s potential right to recover compensation and/or weekly payments was suspended by reason of the operation of s 119(1) and (3) of the 1998 Act due to her refusal to attend an IME. In the alternative, the notice stated that there was an additional ground of dispute on the basis that the potential right to weekly payments is suspended under s 44A(6) of the 1987 Act due to the respondent worker’s refusal to attend an IME for the purposes of a work capacity assessment.[55]
[55] Reply, pp 31–43.
On 10 August 2023, the appellant filed a Reply which included both the original s 78 notice and the amended s 78 notice.[56]
[56] Reply, pp 1–548.
As noted above, the issue as to whether or not leave should be granted to have the Commission hear and determine the s 119 and s 44A(6) issues was the subject of submissions by both parties and I will discuss these in more detail below.
This was the material that was available to the Member on this preliminary issue.
THE MEMBER’S DETERMINATION AND REASONS
The ex tempore decision of Member was given on 11 October 2023.
The Member stated that she had considered both the written and oral submissions of the parties and identified the question that she had to answer as being whether leave should be granted to the insurer to rely on un-notified matters pursuant to s 289A(4) of the 1998 Act.[57]
[57] T 40–41.
The Member identified that the principles in relation to the granting of leave under s 289A(4) of the 1998 Act had been set down in the decision of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[58] and that she was required to turn her mind to a number of factors. The Member then listed each of the factors referred to in Mateus. The Member noted that she must act according to equity, good conscience and the substantial merits of the case but that those matters would not be determinative.[59]
[58] [2007] NSWWCCPD 227 (Mateus).
[59] T 42–43.
The Member noted that counsel for the appellant had agreed that there had been late notification of the s 119 issue and that leave was needed to raise that issue for determination by the Commission. The Member found that she was not satisfied that there was an adequate explanation for the delay. The Member found that whilst the insurer notified the respondent worker in January 2023 that it would seek to have the matter struck out or that liability would be suspended because she had not attended an IME, it failed to issue a s 78 notice to that effect until August 2023.
The Member noted that the insurer could have issued a further s 78 notice when the respondent worker did not attend IME appointments in 2022 and again in January 2023 but stated that the insurer had “sat on its hands” and had done nothing to formally notify the respondent worker that it would raise the s 119 issue as a defence.[60]
[60] T 43.
The Member found that in the absence of an adequate explanation for the delay and “given the prejudice that has been raised by the [respondent worker’s] counsel” leave under s 289A was refused. [61]
[61] T 44.
SUBMISSIONS
The appellant (then the respondent) had filed and served submissions on 8 September 2023. Those submissions were directed to the question of leave under s 289A(4) of the 1998 Act and, the question as to whether the proceedings should be dismissed by reason of the respondent worker’s failure to comply with s 119(3) of the 1998 Act.
On the question of leave under s 289A(4) of the 1998 Act, the appellant identified that the principles to be applied were set out in the decision of Roche DP in Mateus which had been followed in the case of Gandhi v Coles Supermarkets Australia Pty Limited.[62] Those principles or factors are as follows (although numbered differently and they were set out in two tranches in Mateus):
[62] [2022] NSWPIC 475.
(a) the degree of difficulty or complexity to which the un-notified issues give rise;
(b) when the insurer notified that it wished to contest any un-notified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d) any prejudice that may be occasioned to the worker;
(e) any other relevant matters arising from the particular circumstances of the case;
(f) that a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(g) any insurer seeking to dispute an un-notified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(h) any unreasonable or unexplained delay in giving notice of an un-notified matter will be relevant to the exercise of the discretion;
(i) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(j) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised;
(k) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(l) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.
It is common ground that the “un-notified issue” was the dispute in relation to the operation of s 119(3) and/or s 44A(6).
The appellant’s insurer then made submissions in relation to the criteria in Mateus.
The appellant submitted that the degree of difficulty or complexity to which the un-notified issues give rise was insignificant because the issues had been fully ventilated between the parties.[63]
[63] Appellant’s submission made pursuant to direction made 21 August 2023, [5].
The appellant submitted that the s 119(3) issue had been ventilated as and from August 2022 and that all of the legal principles and arguments had been raised in correspondence – clearly and unequivocally – as early as January and February 2023. The appellant argued that it was a purely legal argument which would turn on the interpretation of s 119(3) of the 1998 Act.[64]
[64] Appellant’s submission made pursuant to direction made 21 August 2023, [4] and [6].
The appellant argued that the issue would have been raised in a s 287A dispute notice if the respondent worker had followed the conventional approach of requesting a review but in any event, the appellant had otherwise fulfilled its statutory obligations in relation to notification.[65]
[65] Appellant’s submission made pursuant to direction made 21 August 2023, [7].
The appellant submitted that there was no prejudice to the respondent worker as she had been fully apprised of the issue, that it was a purely legal argument as to whether the IME was arranged in compliance with Pt 7 of the Guidelines, that the respondent worker had more than a month to prepare for the argument at the substantive hearing and would have a full opportunity to respond to the arguments. [66]
[66] Appellant’s submission made pursuant to direction made 21 August 2023, [4]; [7].
The appellant argued that the decision to dispute a claim under s 119(3) had not been made lightly or without proper and careful consideration of the factual and legal issues involved; and had only been raised after multiple attempts to resolve the issue with the respondent worker’s solicitor. The appellant argued that it was a last resort after being repeatedly refused the opportunity to obtain an IME report.[67]
[67] Appellant’s submission made pursuant to direction made 21 August 2023, [10(i)].
The appellant submitted that it had acted promptly to bring the matter to the attention of the Commission by its filing of the s 78 notice on 9 August 2023, in circumstances where the issue had been fully ventilated with the respondent worker between August 2022 and February 2023. The appellant also argued that the issue had been transparently raised at the teleconference on 18 August 2023.[68]
[68] Appellant’s submission made pursuant to direction made 21 August 2023, [10(ii)].
The appellant argued that it had been clearly and unequivocally brought to the attention of the respondent worker that the s 119(3) issue would be relied on in any Commission proceedings in the correspondence in January and February 2023 and therefore the respondent worker was well on notice of the issue. The appellant conceded that the supplementary s 78 notice could have been issued earlier than 9 August 2023, but that the content of the correspondence made it abundantly clear that this was going to be an issue in the proceedings and that therefore the issue of delay ought not be relevant to the exercise of the discretion to grant leave in those circumstances.[69]
[69] Appellant’s submission made pursuant to direction made 21 August 2023, [10(iii)].
The appellant argued that there was considerable merit and substance to the issue because of the appellant’s reliance on s 11A(1) of the 1987 Act, and its inability to do so in the absence of medical evidence because of the principles in Hamad v Q Catering Limited[70].[71]
[70] [2017] NSWWCCPD 6.
[71] Appellant’s submission made pursuant to direction made 21 August 2023, [10(iv)].
The appellant argued that in assessing any prejudice to the respondent worker, it would be significant for the Commission to have regard to when the respondent worker was first made aware of the s 119(3) issue – being as far back as January and February 2023.[72]
[72] Appellant’s submission made pursuant to direction made 21 August 2023, [10(v)].
The appellant submitted that it would be contrary to the principles of equity, good conscience and the substantial merits of the case for the s 119(3) issue not to be determined.[73]
[73] Appellant’s submission made pursuant to direction made 21 August 2023, [10(vi)].
Finally, the appellant argued that there was otherwise nothing in its conduct which would operate against the exercise of the discretion.[74]
[74] Appellant’s submission made pursuant to direction made 21 August 2023, [10(vii)].
The appellant went on to make submissions about the substantive issue regarding s 119(3) asserting that it was frivolous or vexatious of the respondent worker to move forward in the proceedings because of the legal prohibition on the recovery of compensation due to the failure to attend the IME. This represented a failure to correct a fundamental defect in the proceedings and therefore it constituted a failure to prosecute the matter with due despatch pursuant to s 54(c) of the 2020 Act and r 77(a) of the Rules.[75]
[75] Appellant’s submission made pursuant to direction made 21 August 2023, [17].
The appellant argued that there had been compliance with Pt 7 of the Guidelines, pointing to the failure of Dr Hinze to provide the information and opinion sought in the letter from the appellant dated 3 November 2022 for more than two months. This, said the appellant, satisfied the requirement in Pt 7 of the Guidelines that information from the treating medical practitioner was “inadequate or unavailable”. Thus, being compliant with the Guidelines and also a legitimate request in order to ascertain its ability to agitate a defence under s 11A(1) of the 1987 Act, the appellant submitted there was no basis for the respondent worker to refuse to attend the IME. The appellant extracted passages from its correspondence to the respondent worker (and her solicitor) in relation to the validity of the request to attend the IME and submitted that there was no obligation for the appellant to keep going back to Dr Hinze to chase up the requested information.[76]
[76] Appellant’s submission made pursuant to direction made 21 August 2023, [18]–[28].
Finally, the appellant submitted that fairness considerations should also be taken into account in circumstances where the respondent worker had a qualified medico-legal opinion on the s 11A issues, the appellant had been denied access to materials from a treating psychologist, that there was no unreasonableness in asking the worker to attend a medical examination, that s 42(1) set the guiding principle of just, quick and cost effective resolution and that the principles of equity, good conscience and the substantial merits of the case worked in favour of the dismissal of the proceedings.[77]
[77] Appellant’s submission made pursuant to direction made 21 August 2023, [29]–[30].
On 22 September 2023, the respondent worker filed and served its submissions on this preliminary issue. Those submissions commenced by stating that there was no objection to the appellant (then the respondent) raising the s 119(3) issue. The respondent worker’s objection was to the issue being raised under an application under s 54 of the 2020 Act or r 77 of the Rules. Putting it even more clearly, the respondent worker submitted:
“The [respondent] does not now, nor has it ever objected to a s 119(3) issue being raised via s 289A. That is, an argument as to the suspension of the [respondent’s] right to recover compensation or the right to weekly payments.”[78]
[78] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [1].
Other than these statements, the respondent worker made no submissions on the question of leave under s 289A(4) of the 1998 Act.
The respondent worker’s submissions were directed to the substantive issue and argued that there was no basis on which the Commission should consider the application to dismiss the proceedings.
In response to the appellant’s reference to a conventional or usual approach of requesting review, the respondent worker submitted that such an approach may well be the practice of inexperienced solicitors or those who do not understand the legislation. The respondent worker stated that requesting a review was a waste of time. The respondent worker’s submissions went on to say that IRO has acceded to submissions and given Stage 3 funding without having to request review. The respondent worker’s submissions then stated that where a new IRO employee could not be deterred, a review was requested and there was no response from QBE and the issuing of proceedings was once again delayed by two months.[79] [80]
[79] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [3].
[80] I take this as a reference to another matter that is being used as an example, rather than a reference to something that occurred in these proceedings.
The respondent worker submitted that the Guidelines are binding and that there was a plethora of decisions going back to Grant v Department of Lands[81] and cited Lee.[82]
[81] WCC 1136/09.
[82] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [4].
The respondent worker submitted that the proposal for a further IME at the teleconference was also invalid because it was not in conformity with Pt 7.5 of the Guidelines and because the insurer had declined liability by its original s 78 notice. The respondent worker submitted that the insurer should not have declined liability without the evidence it needed to justify doing so and its subsequent attempt to gather evidence by way of an IME was not open.[83]
[83] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [5].
The respondent worker submitted that the first proposed IME requested on 18 August 2022 was invalid because no reasons for the appointment had been set out in the letter as required by Pt 7.1 and 7.2 of the Guidelines; and that there was incomplete information as required by Pt 7.2. It was submitted that the second proposed IME suffered from the same flaws.[84]
[84] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [6]–[7].
In relation to the third proposed IME dated 18 January 2023, the respondent worker submitted that the letter to Dr Hinze was “estimated to be in the hundreds of pages” but the submissions stated that the respondent had not actually counted the number of pages. It was submitted that:
(a) no authority to provide any information from the respondent worker had been provided to Dr Hinze, and
(b) the insurer had not attempted to contact Dr Hinze before proposing the first two IMEs. [85]
[85] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [8].
The respondent worker’s submissions asserted reliance on the contents of an email from Mr Brennan dated 25 January 2023 to the effect that any treating doctor could not be expected to read the letter from the insurer let alone respond; that GPs do not have “that sort of time” to respond to insurers. The submissions state that Mr Brennan’s estimate of the time required to read the correspondence would be many hours and that the doctor would need to have some sort of legal qualification to be able to answer some of the questions. Mr Brennan then submitted that in his 50 years of practice, he had never seen a document anything like the letter to Dr Hinze and described the letter as “beyond overkill”.[86] Further, the respondent worker submitted that the fees offered to Dr Hinze were inadequate for reading “presumably hundreds of pages”.[87]
[86] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [9].
[87] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [10].
The respondent worker’s submissions then argued that the report that had been obtained (on behalf of the respondent worker) from Dr Hinze dated 10 October 2022 dealt with all but four of the questions asked by the appellant.[88]
[88] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [11].
The respondent worker submitted that Pt 7.1 of the Guidelines requires that the insurer be unable to resolve the problem directly with the practitioner before it becomes entitled to an IME and that the insurer had not made any attempt to resolve the issue with Dr Hinze. Rather, it was submitted, the insurer simply waited for something to happen for two months and then attempted to arrange an IME. Accordingly, the respondent worker submitted that s 119(3) does not apply and there was no basis for proceeding with an application under s 54 of the 2020 Act or r 77 of the Rules.[89]
[89] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [12].
On 28 September 2023, the appellant filed and served submissions in reply. The appellant noted that there was no opposition to the application for leave under s 289A of the 1998 Act.[90]
[90] Appellant’s “submissions in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 3.
The appellant repeated that the s 119(3) issue had been in dispute since at least the letter of 18 January 2023 which stipulated that failure to comply with the request to attend the IME would result in application to strike out or dismiss the proceedings. The appellant submitted that at the teleconference on 18 August 2023, an offer had been made to resolve the issue by inviting the respondent worker to attend an IME on 19 September 2023. It was put that if the respondent worker agreed, then the appellant would not proceed with its application to dismiss the proceedings. The appellant stated that this proposal was refused out of hand by the respondent worker’s solicitor without seeking further instructions. The appellant stated that it advised the respondent worker, at that time, it would move forward on its application under s 54 of the 2020 Act or, alternatively, r 77 of the Rules. The appellant argued that the failure to remedy a fatal defect in the proceedings constituted a failure to prosecute with due dispatch.[91]
[91] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 2.
The appellant submitted that the denial of liability in the original s 78 notice was irrelevant to the obligation under s 119(1) of the 1998 Act and cited Dunn.[92]
[92] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 5.
The appellant submitted that Dr Hinze’s failure to respond satisfied the requirements of Pt 7.1 of the Guidelines. It was submitted that Dr Hinze had in fact been provided with the respondent worker’s consent by reason of her signature to that effect on the certificates of capacity.[93] The appellant argued that there was no requirement to keep going back to Dr Hinze, relying on the decision in Millgate v Nationwide News Pty Ltd[94] where it was held that an ambiguous answer justified an IME and arguing that, by extension, a failure to respond would also satisfy the requirements for an IME. Further, the appellant argued, even if it is correct that all but four of the issues were addressed in Dr Hinze’s report of 10 October 2022, that still left the other information sought as being “inadequate” or “unavailable”.[95] The appellant argued that it had engaged in attempts with Dr Hinze on 23 June 2022 and 3 November 2022 and that the information within Dr Hinze’s report dated 26 June 2022 was inadequate or inconsistent.[96]
[93] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 8 and 9.
[94] [2021] NSWPIC 240 at [132].
[95] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 8 and 9, 11.
[96] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 12.
The appellant submitted that Mr Brennan’s view of IMEs was an irrelevant consideration and that the submissions as to the fee regime should be disregarded because they are not a requirement in the Guidelines.[97]
[97] Appellant’s “submission in reply made pursuant to Direction dated 23 [sic, 21] August 2023”, dated 28 September 2023, at Submission 10.
At the hearing on 11 October 2023, the parties made oral submissions. Counsel for the appellant submitted that the refusal to attend an IME negated the respondent worker’s right to recover compensation, therefore the proceedings had no utility.[98] However, before he could proceed further, counsel for the respondent worker submitted that the question of leave under s 289A(4) of the 1998 Act had to be dealt with.[99] Counsel for the appellant submitted that the respondent worker had made no objection to leave being granted in its written submissions and took the Member to the written submissions by each party.[100]
[98] T 10.
[99] T 15.
[100] T 15.
Counsel for the respondent worker referred to the decision in Mateus and submitted that in respect of the criterion of merit, the s 119 application had no merit.[101] Counsel submitted that the criterion that a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved was directed to the merits of the claim. Counsel then addressed two criteria from Mateus, being that the insurer was required to act promptly to bring all matters in dispute to the attention of the Commission and that any unreasonable or unexplained delay in giving notice of an un-notified matter would be a relevant consideration. Counsel submitted that there had been no explanation for the delay.[102] It was then submitted that, in relation to criterion of assessing prejudice to the worker, it was significant to consider when and in what circumstances the worker was first made aware of the un-notified issue, and counsel for the respondent worker submitted that that only occurred in August 2023.[103]
[101] T 11.
[102] T 21.
[103] T 22.17.
In terms of acting in accordance with equity, good conscience and the substantial merits of the case, counsel for the respondent worker submitted that the conduct of the insurer had been completely unacceptable, particularly in circumstances where the respondent worker suffers from a psychological condition. On those grounds, it was submitted that leave should be refused.[104]
[104] T 23.
In response, counsel for the appellant took the Member back to the written submissions and pointed out that the respondent worker had specifically stated that there was no issue in relation to the question of leave and that the respondent worker only objected to the procedural consequence, being the application to strike out or dismiss the proceedings on the basis of ss 119(3) or 44A(6).[105]
[105] T 27.
Counsel for the appellant referred back to its written submissions in relation to the question of leave and asserted that there could not be any prejudice to the respondent worker because, if the insurer’s assertion in relation to its operation of s 119(3) was correct, then all the respondent worker had to do to cure that issue was attend an IME. Further, it was submitted that there had been no delay in substance. Counsel for the appellant submitted that the insurer had not taken the issue lightly and that the request to attend an IME had been made as early as January 2023. Finally, counsel for the appellant stated that if the Commission accepted the s 119 argument, then the matter had to be dismissed.
In response to a question from the Member as to why there had been a delay of seven months between the request for the IME in January 2023 and the filing of the amended s 78 notice in August 2023, counsel for the appellant stated that it was a matter of formalities and that what had been proposed had been foreshadowed as from January. It was submitted that when one looked at the chronology, it was clear that the appellant’s insurer had always been upfront about what it wanted and what was going to happen if the respondent worker failed to comply with the request to attend an IME.[106]
[106] T 27.
In response, counsel for the respondent worker submitted that the requests for the worker to attend an IME had been made as from August 2022 and that there was no explanation for the delay in not formally notifying a dispute until the amended notice in August 2023. Further, counsel also pointed to the fact that after receiving the report of the GP in June 2022 there was no explanation as to why the insurer believed that report was inadequate.[107]
[107] T 37–39.
The Member asked counsel for the respondent worker to address her on the issue of prejudice but then ‘corrected’ herself and said that it had already been dealt with.[108]
[108] T 40.
After the Member refused leave, the matter proceeded to hearing on the issues of liability on 1 November 2023. The Certificate of Determination was issued on 23 November 2023. The appeal was lodged on 19 December 2023.
The appellant’s submissions on appeal submitted that, in reliance on the principles in House v R, the question of leave was wrongfully decided by reason of a failure to take into account relevant considerations, by taking into account an irrelevant consideration and by making a decision based on an error of fact, being the existence of prejudice. The appellant submitted that leave should have been granted and the issue in relation to the application of s 119(3) determined in its favour. The appellant argued that the operation of s 119(3) deprived the Commission of jurisdiction to hear the merits of the matter. The appellant submitted that the Member did not engage with the distinction between the substance of the issue, namely the suspension of the right to compensation (if s 119(3) applied) and its consequences, being the appellant’s strike out application. The appellant submitted that the Member’s consideration was wrongly confined to the insurer raising s 119(3) as a ground of defence, rather than as an issue of jurisdiction.[109]
[109] Appellant’s submissions dated 19 December 2023, [2]–[11]; [20].
In respect of Ground One of the appeal, the appellant submitted that the Member failed to take into account the following relevant matters:
(a) the respondent worker’s consent to the s 119 matter being raised;
(b) the degree of difficulty or complexity to which the un-notified issues gave rise;
(c) when the insurer notified that it wished to contest the issue;
(d) the degree to which the insurer had otherwise fulfilled its statutory obligations;
(e) any prejudice that might be occasioned to the worker;
(f) the merit and substance of the issue, and
(g) the circumstances in which the worker was first made aware of the un-notified issue which was sought to be raised.
The appellant submitted that the only issues taken into account in the exercise of the discretion were a lack of explanation for the delay and prejudice. As such, the appellant submits that it was wrongful exercise of the discretion because the Member did not take into account the issues set out in Ground One of the appeal.
In relation to each of the issues not considered by the Member, the appellant made similar submissions to those it had made in its written and oral submissions in the interlocutory proceedings.[110]
[110] Appellant’s submissions dated 19 December 2023, pp 2–3.
In relation to Ground Two of the appeal, the appellant contended that the Member took into account prejudice to the worker but did not identify what that prejudice was. The appellant contended that there was no prejudice at all, given that her legal representatives had consented to leave, were well apprised of the un-notified issue and were plainly in a position to argue the substantive matter (being the s 119(3) issue). Therefore, there was no prejudice to the worker in having the matter determined at the preliminary hearing.[111]
[111] Appellant’s submissions dated 19 December 2023, [15]–[17].
Ground Three of the appeal followed from Ground Two. In the absence of identifying what the prejudice was, it was submitted that the Member had acted on an error of fact.[112]
[112] Appellant’s submissions dated 19 December 2023, [18].
The appellant seeks to have the interlocutory decision set aside and have the question of leave re-determined afresh. It argues that the s 119(3) issue should be determined in its favour and therefore that the Certificate of Determination dated 23 November 2023 be set aside and orders made that the respondent worker’s right to recover compensation be suspended from 8 February 2023 or alternatively from 9 August 2023 and lastly, that the proceedings be struck out or dismissed.
The respondent worker’s submissions in relation to Ground One of the appeal is that there was no need for the Member to consider the other factors because they could not overcome the appellant’s failure to act promptly or to explain the delay. The respondent worker submits that the appellant’s contention that she had consented to leave being granted under s 289A(4) of the 1998 Act is misconceived and further that consent by the parties could not confer jurisdiction on the Commission. The Member was required to exercise her discretion as to whether or not to grant leave. Finally, the respondent worker asserted that the prejudice to which the worker was exposed is “obvious”.[113]
[113] Respondent’s submissions dated 5 February 2024, [4]–[13].
In relation to Ground Two of the appeal, the respondent worker submitted that the prejudice involved the dismissal of the application on the basis of the belated endeavour to introduce an issue which had not been properly raised. The appellant contended that the substantive matter should have been heard on 11 October 2023 and that by pursuing the preliminary application, it had only served to delay the Commission’s determination on the merits. Further, it was contended that the absence of prejudice would not affect the fundamentally deficient manner in which the appellant had sought to raise the issue. Given the absence of an explanation for the delay, the respondent worker submitted that the application was “fatally flawed” and that the Member properly exercised her discretion.[114]
[114] Respondent’s submissions dated 5 February 2024, [15]–[18].
In relation to Ground Three of the appeal, the respondent worker submits that the un-notified issue posed the risk of dismissal of the application which was a manifestly prejudicial consequence posed by the late introduction of that issue. The submissions repeat that the issue of delay was sufficient to defeat the application for leave even in the absence of any prejudice.[115]
[115] Respondent’s submissions dated 5 February 2024, [15]–[18].
The respondent worker contends that the s 119(3) issue is unfounded and that it would have been open to the Member to find that the appellant had not complied with the Guidelines and therefore there had been no basis to require the worker to submit to an IME. The respondent worker submits that it would be futile to refer the matter back to the Member or another Member given the lack of merit in the s 119(3) argument.[116]
[116] Respondent’s submissions dated 5 February 2024, [19]–[20].
In reply, the appellant submits that if it were the case that the Member was of the view that she was not obliged to consider and determine the other discretionary factors in relation to the grant of leave (other than delay and prejudice), that was not stated. No explanation was given by the Member as to why the other issues had not been considered or determined by her. Further, the appellant referred back to the respondent worker’s submissions dated 22 September 2023 which stated:
“There is no objection to the [appellant] raising a s 119(3) issue. It still needs to be raised but when it is, the [respondent] consents to it being raised.”
This statement, submits the appellant, was an acknowledgement of consent to leave being granted for the s 119 issue to be ventilated.
In relation to Ground Two, the appellant accepts that if leave had been granted, the ability of the respondent worker to prosecute her application would have been put at risk in the event that the s 119(3) argument had been determined against her. However, the prejudice to which the Member was required to direct herself was prejudice in the granting of leave to hear that application. In relation to an explanation for the delay, the appellant relied on its submissions dated 8 September 2023. The appellant submits that the respondent has not identified how the granting of leave would have visited any unfairness upon the respondent worker.
CONSIDERATION
In order for the appeal to succeed, I must be persuaded that the Member was in error, as is required by s 352(5) of the 1998 Act. Further, I note the principles as to the approach that needs to be taken to appeals as summarised by Allsop J (as his Honour then was) in Owston Nominees.[117]
[117] Owston Nominees, [24]–[25]; [28].
The respondent worker lodged a claim for compensation on or about 29 May 2022. The appellant disputed liability by way of a formal notification.
Sections 78 and 79 of the 1998 Act deal with an insurer’s obligations in respect of giving notice of a dispute. It provides:
“78 Insurer to give notice of decisions
(1) An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation or reduce the amount of the compensation.
…
79 How notice of decision is given
(1) A notice required by this Division must be given—
(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
(4) The regulations may make provision for—
(a) the manner in which a notice under this Division is to be given, and
(b) the form of and other information to be included in or to accompany the notice.”
Clause 38 of the Workers Compensation Regulation 2016 provides:
“38 Notice of insurer decisions
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b) a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c) a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d) details of the procedure for requesting a review of the decision,
(e) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f) the contact details for the Independent Review Officer,
(g) the street address and the email address of the President,
(h) a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute ...”.
As noted above, the appellant issued a s 78 notice on 19 August 2022, disputing liability in relation to injury and, in the alternative, stating that it relied on s 11A and asserted that if there was a psychological injury, it had been caused by reasonable actions taken or proposed to be taken by the employer with respect to discipline and/or a proposed transfer and/or a request for the respondent worker to attend a fitness for work assessment to assess whether she was psychologically fit to perform her role.[118] In that notice, the appellant stated that the respondent worker was obliged to attend the then upcoming IME and cited s 119 of the 1998 Act.[119] However, the issue of not attending the IME did not form part of the disputed matters in the notice.
[118] Reply, pp 1–30.
[119] Reply, p 28 (3rd paragraph).
Over the following year, there was correspondence between the parties about the respondent worker being required to attend an IME, and this has been referred to in detail above under the heading ‘The Evidence’. I shall return to that correspondence later.
This dispute was referred for determination by the Commission by the filing of the ARD on 18 July 2023. At that time, the only formal notification of a dispute under s 78 of the 1998 Act was that issued by the appellant on 19 August 2022.
On 9 August 2023, the appellant filed an amended s 78 notice which included the following:
“This notice should be read in conjunction with StateCover’s previous liability dispute notice dated 19 August 2022.
StateCover has made the decision to maintain its previous liability dispute for your workers compensation claim but is also adding some additional grounds of dispute arising from your failure to comply with your statutory obligations to attend an independent medical examination previously arranged by StateCover.
StateCover adheres to all of the grounds of dispute raised in the previous dispute notice dated 19 August 2022.
However, StateCover now also relies on the following additional grounds of dispute:
1. Your potential right to recover compensation and/or weekly payments is suspended under section 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 due to your refusal to attend a mandatory independent medical examination arranged on behalf of the employer and the breach of your obligation under section 119(1) of the 1998 Act to attend an initial medical examination arranged on behalf of the employer.
2. In the alternative, your potential right to weekly payments is suspended under section 44A(6) of the Workers Compensation Act 1987 due to your refusal to attend an independent medical examination that was reasonably necessary for the purposes of the conduct of a work capacity assessment, which you were obliged to attend under section 44A(5) of the 1987 Act.”[120]
[120] Reply, p 32.
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) …
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
As such, the dispute in relation to the operation of ss 119(3) of the 1998 Act and/or 44A(6) of the 1987 Act were ‘unnotified matters’ because they had not been notified prior to the matter being referred to the Commission.
When the matter came before the Member for a preliminary conference on 18 August 2023, the appellant asserted that it would be relying on s 119(3) of the 1998 Act and indicated it would be making submissions at hearing to have the matter struck out or suspended until worker attended an IME. The issue of leave to proceed with that application and/or the operation of s 289A of the 1998 Act was not, according to the notes of the Member, discussed at that preliminary conference. However, the Member determined to hear that issue as a preliminary matter.
On 21 August 2023, the Member directed the parties to file submissions in relation to any applications it proposed to make with respect to matters arising from s 119 of the 1998 Act. The matter was heard and determined on 11 October 2023.
Ground One: Error in the exercise of discretion on the application pursuant to s 289A(4) of the 1998 Act in failing to take into account relevant considerations
The only matter for determination on 11 October 2023 was the appellant’s application to have the proceedings struck out or stayed by reason of the operation of ss 119(3) of the 1998 Act and/or 44A(6) of the 1987 Act.
In the written submissions filed prior to the hearing, the appellant had clearly enunciated that leave was required under s 289A(4) of the 1998 Act; it had set out the principles in Mateus and addressed each of the criteria set down in that case. The appellant then made submissions as to why s 119(3) of the 1998 Act was applicable.
The respondent worker, in her written submissions, expressly stated that she did not oppose the s 119(3) issue being raised under s 289A and acknowledged that the issue had been raised in correspondence. No part of the written submissions addressed any of the criteria under Mateus. Rather, the written submissions were directed to arguments as to why
s 119(3) would not apply and the compliance or otherwise with Pt 7 of the Guidelines.However, when the matter came before the Member on 11 October 2023, the respondent worker’s counsel, in oral submissions, opposed the grant of leave. In doing so, counsel for the respondent worker referred to the criteria in Mateus, thereby implicitly accepting it as containing the appropriate principles by which grants of leave under s 289A(4) of the 1998 Act should be determined.
At no time, during the oral hearing did the Member assert that the principles laid down in Mateus were inapt or should not be considered as applicable to the question of leave.
I find that the principles in Mateus constitute the correct test for determining an application as to whether or not it is in the interests of justice to determine an un-notified matter under
s 289A(4) of the 1998 Act.In her decision, the Member accepted that the principles to be considered were contained in Mateus and expressly listed them.[121] However, when making her determination, the Member made findings in relation to only two of the factors. The first was that the Member was not satisfied that there was an adequate explanation for the delay in raising the s 119 issue. The second was that there had been prejudice to the respondent worker.[122]
[121] T 42.
[122] T 43–4.
There was no consideration of the other factors listed in Mateus as relevant considerations. There was no statement within the decision that explained either why the Member determined that these criteria were not relevant to her decision-making process or, that she had considered them at all.
In circumstances where the appellant had made thorough written submissions on each of the factors, where the respondent worker had initially consented to the grant of leave but then had made submissions orally at the hearing opposing leave and referring to factors in Mateus, it was incumbent upon the Member to either address each of those arguments or to provide an explanation as to why those arguments were not being considered by her.
In the exercise of a statutory discretion, the High Court in House v R has determined that there will be an error of law if material considerations are not taken into account.
I reject the respondent worker’s submissions on this appeal that the Member was not required to consider factors, other than delay and prejudice, because the other factors could not overcome the appellant’s failure to act promptly or to explain the delay. There is nothing in Mateus that suggests that the issues of acting promptly or having an explanation for any delay in notification of an un-notified issue are the predominant or defining factors for the determination of applications under s 289A(4) of the 1998 Act. Clearly those factors are relevant and significant but there is no basis upon which to find that they form anything other than part of a wider and more comprehensive matrix of factors to be taken into account.
Accordingly, I find that there was an error of law in the Member failing to take into account the following factors:
(a) the respondent worker’s consent to the s 119 matter being raised;
(b) the degree of difficulty or complexity to which the un-notified issues gave rise;
(c) when the insurer notified that it wished to contest any un-notified issue;
(d) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(e) any prejudice that may be occasioned to the worker;
(f) the merit and substance of the issue, and
(g) the circumstances in which the worker was first made award of the un-notified issue which now sought to be raised.
I uphold Ground One of the appeal.
Ground Two: Error in the exercise of discretion on the application pursuant to s 289A(4) of the 1998 Act in taking into account an irrelevant consideration, namely prejudice to the respondent worker without identifying that prejudice
There was nothing in the written submissions of the respondent worker as to the criteria for the grant of leave under s 289A(4) of the 1998 Act. In oral submissions on 11 October 2023, counsel for the respondent worker identified prejudice as an issue but made no submissions at all as to what the nature of the prejudice was (or might be) for the respondent worker, if the Commission proceeded to hear and determine the s 119(3) issue.
When oral submissions were concluding, the Member asked counsel for the respondent for submissions on the question of prejudice but then determined that such submissions had already been made. It is unfortunate that counsel for the respondent did not correct the Member and advise her that in fact, no submissions had been made on the nature and scope of the alleged prejudice. The only time prejudice had been mentioned by counsel for the respondent worker was when he stated that one of the considerations when assessing prejudice was to consider when and in what circumstances the worker was first made aware of the un-notified issue that was sought to be raised.[123] It is also unfortunate that counsel for the respondent, at that part of his submissions, advised the Member that the first time that notification occurred was in August 2023 without qualifying that statement by saying that the issue had been raised in correspondence but only formally notified in the s 78 notice on 9 August 2023.
[123] T 22.
In the submissions in this appeal in relation to Ground One, the respondent worker submits that the prejudice was “obvious” without saying what the prejudice was. In relation to Ground Two, the respondent worker submits that the prejudice involved the dismissal of the application on the basis of an issue that had not been properly raised. It is put that the substantive matter should have been heard on 11 October 2023 and that therefore the prejudice was a delay of the determination of the merits of the application. However, the respondent worker’s submissions did not submit, nor could he, that the identification of the prejudice – in those terms – had been put to the Member nor was it contended that the Member understood the purported prejudice to be in those terms. Accordingly, the respondent worker has not relevantly engaged with this ground of appeal.
I find that the Member did not identify what the prejudice was in her decision and given that it was one of only two criteria that the Member considered, it is clear that it had some persuasive power. The failure to identify what it was that the Member was referring to in relation to prejudice leaves me unable to determine what the Member took into account and therefore unable to determine if it was relevant or irrelevant.
In Soulemezis v Dudley (Holdings) Pty Ltd[124] the Court held that:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
[124] (1987) 10 NSWLR 247, 280.
In the recent decision of the NSW Court of Appeal in Fisher v Nonconformist Pty Ltd,[125] the Court looked at whether the Commission was required to give reasons and the nature of the test for adequacy of reasons:
[125] [2024] NSWCA 32, [136]–[138].
“There is no general common law duty on executive decision-makers to give reasons for their decisions: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 662; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43]. The position is different for judges, for whom the requirement to give reasons is a normal, though not universal, incident of the judicial process: see Osmond at 666–667. Not infrequently, however, some statutory duty is imposed on executive decision-makers.
Such a duty is found in s 294 of the [1998] Act:
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
Such an obligation is also addressed in the Personal Injury Commission Rules 2021:
‘78 Statement of reasons for decision
(1) This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.’”
The Court of Appeal held that the standard was summarised in Mingv Director of Public Prosecutions (NSW)[126] as follows:
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”
[126] [2022] NSWCA 209, [43].
I accept the submissions of the appellant that before prejudice can be weighed, when considering the factors to be taken into account for the purposes of determining what is in the interests of justice within the meaning of s 289A(4), the nature and scope of prejudice itself has to be identified.
I find that the Member did not elucidate in any way, her reasons for resolving a point critical in her decision – the issue of prejudice – and that this failure occurred in circumstances where there was a contest between the parties on that issue.
I find that in the absence of reasons as to what the Member was referring to in relation to prejudice, the Member erred in law because the unidentified prejudice must be seen as an irrelevant matter in the exercise of the discretion.
I uphold Ground Two of the appeal.
Ground Three: Error of fact in the exercise of discretion on the application pursuant to s 289A(4) of the 1998 Act finding the existence of prejudice to the respondent worker
This ground of appeal is on the same basis as that in Ground Two.
For the reasons that I have set out above, I find that the Member engaged in an error of fact in finding that there was prejudice to the respondent worker.
I uphold Ground Three of the appeal.
CONCLUSION
It follows that the ex tempore decision dated 11 October 2023 is revoked.
NEW DECISION
Given the history of this matter and the fact that the parties have now made detailed submissions in relation to each of the relevant factors, I have determined that, in conformity with s 42(1) being the guiding principle of just, quick and cost effective resolution of disputes, to make a new decision in place of the Member’s decision pursuant to s 352(6A) of the 1998 Act.
Principles applicable to s 289A(4)
Section 289A(4) permits the Commission to consider an un-notified matter if it is in the interests of justice to do so. The principles applicable to that consideration were set out in Mateus and I find that those criteria are appropriate and applicable. I deal with each of those criteria as follows.
The degree of difficulty or complexity to which the un-notified issues give rise
The un-notified issue is whether or not s 119(3) of the 1998 Act and or s 44A(6) of the 1987 Act operate to suspend any right by the respondent worker to recover compensation or weekly payments.
I accept the appellant’s submission that this issue has been the subject of much correspondence between the parties. I find that the dispute has crystallised into two issues.
The first is whether or not an insurer is able to direct a worker to attend an IME if the insurer has already denied liability. This issue has been heavily debated between the parties. On the one hand, the respondent worker says that having denied liability, the appellant’s insurer was precluded from requesting the worker to undergo an IME. The solicitor for the respondent worker cited a passage from Coleman v Ministry of Health which he said stated: “Having denied liability, the respondent indicated it had made a medical appointment with Dr Young for the worker and would reconsider any liability issues on receipt of the report. Understandably, the applicant did not attend that medical examination.” The respondent worker’s argument goes no further and does not articulate why the Commission Member found that the refusal was ‘understandable’.
On the other hand, the appellant’s insurer submits that there is no such fetter on the ability of an insurer to request a worker to attend an IME. It relies on the decision in Dunn where it was held that the ability to request a worker to attend an IME is not conditional on the existence of a dispute. Rather, that case states if a worker has either given a notice of injury or has been receiving weekly payments, then the insurer has the ability to request an IME.
However, it is also clear that the other conditions in s 119 must be met and this leads to the second issue that has arisen between the parties. It is whether the insurer has complied with the Guidelines in relation to the requests made to the worker to attend an IME. In this regard, I note that there have been four requests dated:
(a) 18 August 2022 to attend Dr Nagesh, psychiatrist, on 21 September 2022;[127]
(b) 19 October 2022 to attend Dr Clayton Smith, psychiatrist on 16 November 2022;[128]
(c) 18 January 2023 to attend Dr Nagesh on 8 February 2023,[129] and
(d) 18 August 2023 to attend Dr Bommasani, Psychiatrist, on 19 September 2023.
[127] ARD, pp 90–92.
[128] ARD, pp 94–96.
[129] ARD, pp 99–105.
Section 119(4) of the 1998 Act provides that:
“A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the Workers Compensation Guidelines or at more frequent intervals than may be prescribed by the Workers Compensation Guidelines.”
Section 376 of the 1998 Act provides for the issuance of the Guidelines.
Part 7.1 of the Guidelines provides:
“7.1 Reason for referral
Referral for an IME is appropriate when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners.
Evidence of contact (or multiple attempts to contact) to try to resolve these issues with the nominated treating practitioner must be documented on the claim file.
An IME is appropriate where the information required relates to:
· diagnosis of an injury reported by the worker
· determining the contribution of work incidents, duties and/or practices to the injury
· whether the need for treatment results from the worker’s injury and is reasonably necessary
· recommendations and/or need for treatment
· capacity for pre-injury duties and hours
· the likelihood of and timeframe for recovery
· capacity for other work/duties (descriptions of such duties are to be provided to the independent medical examiner)
· what past and/or ongoing incapacity results from the injury
· physical capabilities and any activities that must be avoided
The reason for the referral must be documented on the claim file.
An insurer may also refer a worker for an independent medical examination for the purpose of obtaining an assessment of permanent injury (injuries before 01/01/2002) or permanent impairment (injuries on and after 01/01/2002) resulting from the injury.”
Part 7.7 of the Guidelines provides:
“7.7 Unreasonable request
If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.
…
The insurer must consider this objection and advise the worker of their decision. This advice must include contact information for the Independent Review Office (IRO). Benefits are not to be affected prior to adequate written notice being received by the worker.
Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinstated.”
In Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council[130] Basten JA held:
“Reference to the terms of the Guidelines demonstrates that, like s 119 itself, the drafter had in mind the need to balance the interests of the employer and the injured worker for the purposes identified by the primary judge in the passage set out above. The interrelationship between sub-ss (2) and (4) of s 119 is not beyond doubt. Subsection (4) could be seen as defining the scope of the power conferred by sub-s (2), or as controlling the manner of its operation. Because sub-s (4) refers to that which is done ‘under this section’, the latter alternative is to be preferred.”
[130] [2009] NSWCA 59, [104].
Accordingly, there is no doubt that compliance with the Guidelines is required for both the appellant’s insurer and for the respondent worker. That is, the determination of the dispute will require an assessment of whether the insurer had a proper basis to make the request and whether it provided the information required by the Guidelines. It will also require an assessment of whether the respondent worker provided appropriate reasons for her refusals to attend the IMEs.
The dispute is well set out in the correspondence between the parties. It involves the following discrete issues (in respect of each request):
(a) was the information from Dr Hinze inadequate, unavailable or inconsistent?
(b) was the insurer unable to resolve the problem directly with Dr Hinze? In this regard, was the insurer required to chase up Dr Hinze for information?
(c) Did the information provided to the worker satisfy Pt 7.5 of the Guidelines?
The appellant obtained an original report from Dr Hinze on 26 June 2022.[131] Later, on 3 November 2022, the insurer sought another report from Dr Hinze to respond to 12 questions and annexing relevant documents. Question 6 was directed to s 11A(1) of the 1987 Act and asked Dr Hinze for her opinion as to whether the predominant cause of the worker’s current incapacitating psychological injury was employer action with respect to a proposed transfer or the request for the worker to attend a fitness for work assessment.[132] The rest of the questions were directed at diagnosis, other possible causal stressors and the worker’s fitness for any type of work.
[131] Reply, pp 79–80.
[132] Reply, p 508.
The respondent worker asserts that there was sufficient information in the report from Dr Hinze dated 26 June 2022 and also in a report obtained by the worker’s solicitor dated 10 October 2022. The respondent worker asserts that all but four of the 12 questions were answered in those two reports. Further, the respondent worker said that the insurer’s request was something that no treating doctor could not expected to read, let alone respond to, and that GP's do not have that sort of time available to respond to insurers. The respondent worker’s solicitor said he had never seen a document anything like it and described the letter as “beyond overkill”.[133] However, there was no evidence at all from Dr Hinze about why she had failed to respond to the request and there was nothing in the correspondence from the respondent worker’s solicitor to indicate that he had contacted Dr Hinze and obtained that information. I find that the comments made by the respondent worker’s solicitor have no relevance and are merely expressions of his own opinion.
[133] Respondent’s “precis and submissions pursuant to PIC’s Direction 23.8.23 [sic, 21.8.23]”, [9].
As such, I find that the issues are already well defined between the parties and that they do not involve any complex issues of law or fact.
When the insurer notified that it wished to contest any un-notified issue
The letter dated 18 August 2022 containing the first request to attend an IME referred to the obligation under s 119(1) of the 1998 Act but went no further.
However, it is clear that as early as 2 September 2022, the correspondence from the insurer to the respondent worker’s solicitor referenced that the IME was referred to in the original
s 78 notice, set out subss 119(1), (2) and (3) of the 1998 Act and referred to the decision in Chatto, where it was held a worker was required to attend a medico-legal specialist even though the dispute notice had been issued.[134][134] Reply, pp 457–458.
Thereafter, as from 8 September 2022, the respondent worker’s solicitor actively engaged in the debate about the operation of s 119(3) and the content of the Guidelines. It is self-evident from the correspondence that the respondent worker’s solicitor was well familiar with the statutory provision and knew that what was at stake was the potential for the respondent worker to be denied compensation or weekly payments.
In any event, on 9 September 2022, the appellant’s insurer expressly stated, in relation to the second proposed IME:
“If your client objects to this further appointment, we will issue a supplementary section 78 notice which raises a ground of dispute under sections 119(3) of the 1998 Act and section 44A(6) of the 1987 Act and will apply for any future Commission proceedings to be struck out while ever your client fails to comply with her statutory obligation to attend this examination.”[135]
[135] Reply, p 467.
There was further correspondence in October 2022.
Then, in the third request for an IME, on 18 January 2023,[136] the appellant set out subss 119(1) to (3) of the 1998 Act and responded to the arguments that had been put forward by the respondent worker’s solicitor. It cited the decision in Dunn and asserted (in detail) why the request was in compliance with s 119 including the Guidelines. The letter referred to s 44A(5) of the 1987 Act and said that failure to attend would result in a further dispute notice about the issue.
[136] ARD, pp 99–105.
On 10 February 2023 the appellant’s insurer wrote to respondent worker’s solicitor[137] setting out, again, its arguments about compliance and then concluded as follows:
“We will proceed to do what we said we would do in our letter dated 18 January 2023. We will issue a supplementary section 78 notice on your client, care of your firm, which raises additional disputes under section 119(3) of the 1998 Act and section 44A(6) of the 1987 Act. We will ventilate these additional grounds of dispute in the Commission at the appropriate time. This will inevitably delay the progress of the proceedings. We won’t be making any settlement offers until your client attends the outstanding independent medical examination.”
[137] Reply, pp 519–520.
Accordingly, whilst it is correct that the appellant did not issue the amended s 78 notice until 9 August 2023, it could not be said that the amended notice took the respondent worker by surprise.
I am satisfied that the respondent worker was put on notice that the appellant intended to contest the s 119 issue at least as from 9 September 2022. I find that the appellant’s intention was re-affirmed in its correspondence in January and February 2023.
The degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability
The parties are not in dispute about this criterion and the respondent worker does not point to any non-compliance with any other statutory obligation to notify the worker of its position on liability.
Any prejudice that may be occasioned to the worker (noting that in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised)
There was no evidence or other materials filed as to any prejudice to the respondent worker should leave be granted to ventilate the additional disputes under s 119(3) of the 1998 Act and s 44A(6) of the 1987 Act.
Nothing was put by the respondent worker in the written submissions prior to the preliminary hearing as to any alleged prejudice. Although prejudice was mentioned, the form or scope of prejudice was not identified in the oral submissions for the respondent worker on 11 October 2023.
However, in the course of this appeal, the respondent worker submits that the prejudice manifests itself in two forms; the delay in having the substantive matter heard, and the risk of having the proceedings struck out.
The appellant says there is no prejudice and that if there was, it could have been cured by the respondent worker attending an IME.
I acknowledge that in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue. This is because, if an un-notified issue takes the worker by surprise or at a disadvantage in addressing the issue because of time constraints, then it will be likely to be prejudicial to the worker to meet that new dispute. However, in this matter, I have found that the un-notified issue (being the application of s 119) was raised with the respondent worker well before the hearing, indeed at least as from 9 September 2022 and confirmed in January and February 2023.
In assessing prejudice, I also take into account that a refusal to attend an IME could place the respondent worker at risk that any right to compensation and weekly payments may be suspended.
I am satisfied that there is a degree of prejudice to the respondent worker because leave, if granted, will result in both delay of the substantive matter being determined and a risk that her right to compensation and weekly payments will be suspended.
However, there is also prejudice to the appellant in that the refusal of the respondent worker to attend an IME has meant that it has been unable to obtain a medical report which may support its defence under s 11A(1) of the 1987 Act.
As such, I find that the prejudice is balanced as between the parties.
Any other relevant matters arising from the particular circumstances of the case
I find that the respondent worker expressly consented to leave being granted to agitate the un-notified issues. This is made clear by the express statements to that effect in the written submissions of the respondent worker dated 22 September 2023 and the absence of any arguments addressing the criteria in Mateus (or any other submissions against the grant of leave) in those written submissions.
I note that in the oral submissions on 11 October 2023, counsel for the respondent worker objected to leave for the first time. The strongest argument put was the lack of any explanation for the delay in filing the amended s 78 notice.
I find that, although the discretion to grant leave rests in the Commission, the initial consent from the respondent worker is relevant and militates in favour of the grant of leave.
That the decision to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved
I have set out in detail in the section above dealing with “Evidence” the correspondence between the parties in relation to the respondent worker attending an IME, the reasons for that examination and the ramifications for both parties should the respondent worker not comply.
The correspondence shows that the appellant’s insurer did not immediately notify a dispute about the ss 119(3) and 44A(6) issues. Rather there was an exchange of correspondence and further attempts were made to have the respondent worker agree to attend an IME. As I have set out above, I am satisfied that the respondent worker was well on notice that the ramifications for not attending an IME (if the request was valid) was the risk that her right to workers compensation and/or weekly payments might be suspended.
The appellant in its submissions says that the decision to notify the dispute was not made lightly or without proper consideration. The respondent worker’s oral submissions on 11 October 2023 on this issue was that it required consideration of whether there was any merit to the s 119 issue but did not make any other submissions. The respondent worker did not submit, in terms, that the notification was made lightly or without proper consideration.
I am therefore satisfied that the decision to notify the dispute was not made lightly or without proper consideration.
Whether the insurer acted promptly to bring the matter to the attention of the Commission and all other parties
For the reasons set out above I am satisfied that the appellant’s insurer ensured that the respondent worker was aware of the issue as to the ramifications of non-compliance with a request to attend an IME. Further, it is clear that this matter was brought to the respondent worker’s attention as early as September 2022 but certainly in the very clear terms of the request made on 18 January 2023.
Notwithstanding this prompt notification of the issue to the respondent worker, the first time that the appellant notified the Commission that this was an issue in dispute was when it filed its amended s 78 notice on 9 August 2023.
I find that this was not conduct which promptly brought the matter to the attention of the Commission.
Whether there is any unreasonable or unexplained delay in giving notice of the un-notified matter
The appellant has filed no evidence to explain the delay in waiting until 9 August 2023 to file the amended s 78 notice. It must have been clear to the appellant and its insurer by
8 February 2023, when the respondent worker did not attend the scheduled IME with
Dr Nagesh, that the respondent worker’s position was a continued refusal to comply with the request, thus enlivening s 119(3) of the 1998 Act.Further, the appellant’s insurer had made it abundantly clear that in the event of a refusal it would file an amended dispute notice and have the dispute ventilated before the Commission.
In its submissions, the appellant argues that because of the early notification of the issue to the respondent worker, the delay in making the formal notification should not be treated as significant. However, that submission belies the fact that the statutory scheme requires notification of disputes to the Commission as well.
In that context, I find that there has been an unexplained delay in giving formal notification of the dispute in relation to the application of the ss 119(3) and 44A(6) issues.
The merit and substance of the issue that is sought to be raised
At this juncture, I am not required to give views as to any final findings in relation to the
ss 119(3) and 44A(6) issues. What is required is that I be satisfied that the argument has merit and substance. In effect, I am required to find that it is not a fanciful or remote argument.In my view, there is a genuine dispute to be determined as to whether the appellant’s insurer validly made a request to the respondent worker to attend an IME in conformity with s 119 of the 1998 Act. I find that there is substance to the dispute and that there is merit in determining the issues.
There are clearly arguments on both sides as to whether there has been a valid request and it needs to be determined so that the substantive rights of both the insurer and the respondent worker are dealt with.
Equity, good conscience and the substantial merits of the case
The refusal to attend an IME was a live issue between the parties for many months before the hearing on 11 October 2023 and despite the fact that the appellant’s insurer failed to file a formal amended s 78 notice until 9 August 2023, it is the case that I have found that the respondent worker was well on notice of the nature of the dispute including the consequences which may follow if the request(s) to attend an IME were valid. It is also the case that I have found that the issues in dispute are confined and have already been well ventilated between the parties. Further, it is readily apparent that the outcome may have advantages for the appellant’s insurer, particularly in relation to the opportunity to obtain evidence to support its defence under s 11A(1) of the 1987 Act.
Whilst I very much appreciate the difficulties that this poses for the appellant, particularly in circumstances where there is medical evidence as to the nature of her psychological injuries, I am of the view that equity and good conscience and the substantial merits of the overall dispute favour that leave be granted to determine these issues.
The general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion
I consider that there is nothing to be said, one way or the other, in relation to the conduct of the parties in the proceedings. It is clear from the correspondence, that both sides have engaged in a robust debate in favour of their respective clients. I do not see any basis for finding that the conduct of either party was such that it should warrant a penalty against them in relation to this leave application.
Finding
For the reasons set out above, I am of the view that it is in the interests of justice within the meaning of s 289A(4) of the 1998 Act for the Commission to determine the following issues which were notified in the amended s 78 notice dated 9 August 2023:
(a) Whether the respondent worker’s right to recover compensation and/or weekly payments is suspended under s 119(3) of the 1998 Act due to her refusal to attend a mandatory IME arranged on behalf of the employer and in breach of the obligation under s 119(1) of the 1998 Act to attend an independent medical examination arranged on behalf of the employer.
(b) In the alternative, whether the respondent worker’s right to weekly payments is suspended under s 44A(6) of the 1987 Act due to the respondent worker’s refusal to attend an IME that was reasonably necessary for the purposes of the conduct of a work capacity assessment, which the respondent worker was obliged to attend under s 44A(5) of the 1987 Act.
I do not however intend to make a decision as to the merits of those issues. Given that no decision was made at first instance as to the legal and factual matters at play, I am of the view that it is appropriate for the determination of that issue to be remitted to a different non-presidential Member of the Commission.
It follows from this grant of leave that the questions in relation to the operation of s 119(3) and/or s 44A(6) must be determined to ascertain whether the respondent worker’s ability to receive compensation or weekly payments is suspended or not.
As such, the decision and Certificate of Determination dated 23 November 2023 cannot stand and must be revoked.
DECISION
If it is necessary, I grant leave to appeal the Member’s interlocutory decision dated 11 October 2023 pursuant to s 352(3A) of the 1998 Act.
I uphold the appeal.
I revoke the decision of the Member dated 11 October 2023 and in substitution of that decision, I determine that it is in the interests of justice for the un-notified issues to be determined by the Commission.
I remit the determination of the un-notified issues as set out in paragraph [246] above to a different non-presidential Member of the Commission.
The Certificate of Determination dated 23 November 2023 is revoked.
Kylie Nomchong SC
ACTING DEPUTY PRESIDENT
16 May 2024
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