Dunn v Westruss Manufacturing Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dunn v Westruss Manufacturing Pty Limited [2022] NSWPIC 379
APPLICANT:	Sydney Kevin George Dunn
RESPONDENT:	Westruss Manufacturing Pty Limited
MEMBER:	Philip Young
DATE OF DECISION:	13 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Preliminary issue concerning whether applicant should be required to attend respondent’s independent medical examination (IME); respondent failed to issue section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) notice at all; applicant claims section 66 of the Workers Compensation Act 1987 (1987 Act) psychological and respondent has no IME; applicant requests award in accordance with the claim (15% whole person impairment); respondent points to section 119 of the 1998 Act; Held – although respondent in breach of section 78 and section 281 of the 1998 Act, the effect of section 119 of the 1998 Act is to look to claim of injury or receipt of weekly payments as requiring applicant attendance at medical (not existence of dispute) and section 289(3)(c) of the 1998 Act gives the Personal Injury Commission jurisdiction to determine that section 119(3)(a) of the 1998 Act suspends the applicant’s entitlement to recovery section 66 of the 1987 Act compensation.
DETERMINATIONS MADE:	1. The applicant’s right to recover compensation under this Act is suspended until an examination has taken place by a medical practitioner provided and paid by the employer (s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act)). 2. The conciliation and arbitration hearing set down for 4 August 2022 at 10.00am is vacated. 3. The respondent is to arrange independent medical assessment of the applicant to occur before 30 September 2022. 4. Provided that the applicant attends a medical examination at the request of the employer before 30 September 2022 the medical assessment set down for Dr Andrews on 9 November 2022 may proceed. 5. Either party has liberty to apply in respect of vacation of the medical assessment appointment of 9 November 2022 and otherwise and in respect of a further hearing date.

STATEMENT OF REASONS

BACKGROUND

Sydney Kevin George Dunn (the applicant) is a 64-year-old-man who was employed by Westruss Manufacturing Pty Limited (the respondent) as a truck driver. He alleges primary psychological injury resulting from an incident which occurred in the course of his employment on 24 October 2019.
The applicant’s allegation is that whilst he was unloading a truck he fell a distance of about
4 m and a timber frame fell off the truck onto his chest resulting in him suffering serious injuries to his back and torso.
The applicant makes a claim under s 66 of the Workers Compensation Act 1987 (1987 Act) for 15% whole person impairment resulting from primary psychological injury.
The present matter for consideration is whether the applicant should be required to submit himself for examination by a medical practitioner, provided and paid by the employer.[1]
[1] Section 119(1) Workplace Injury and Management and Workers Compensation Act 1998 (1998 Act).

ISSUES

The only issue at this stage is that which has just been outlined, i.e. should the applicant be required to be assessed by a psychiatrist, chosen by the respondent. This issue is in the context of an alleged failure by the respondent to determine the applicant’s claim within the timeframes imposed by s 281 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

This matter came for teleconference on 14 June 2022. Mr Tancred, solicitor, appeared for and with the applicant. Mr Flocco, solicitor, appeared for the respondent. Ms Tamika was present for the insurer.
At the teleconference there was dispute between the parties. Mr Tancred had requested the teleconference because no medical dispute was before the Commission and the Commission should simply enter orders in favour of the applicant on his claim. The background to this was suggested to be that the respondent had not provided any notice under s 78 or s 287A of the 1998 Act and had hitherto not had the applicant independently medically examined. The only available medical evidence on impairment was that from the applicant.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute (the Application) and attachments lodged 11 May 2022, and
(b) Reply and attachments lodged 19 May 2022 (Reply)
In addition, the following written submission were received:
(a) written submissions by the respondent dated 23 June 2022, and
(b) applicant’s submissions in response dated 29 June 2022

ORAL EVIDENCE

No oral evidence was necessary nor given.

DISCUSSION AND REASONS

Section 78 (1) of the 1998 Act is in the following terms:
“78 (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.”
In this matter s 78 (1) (a) is relevant because the insurer has not issued any s 78 Notice to put the applicant’s s 66 claim in dispute at all. Section 85 of the 1998 Act states that an insurer who fails to comply with (for our purposes) s 78 is guilty of an offence, however, the effect of failing to comply with s 78 otherwise does not appear to be addressed within Division 3 of the 1998 Act.
Section 281 of the 1998 Act relevantly provides as follows:
“281 (1) The person on whom a claim for lump sum compensation or work injury damages is made, must within the time required by this section, determine the claim by:
(a)    accepting liability and making a reasonable offer of settlement to the claimant, or
(b)    disputing liability under Division 3 of Part 2 of Chapter 4
(2) A claim must be so determined:
(a)    within one month after the degree of permanent impairment becomes fully ascertainable, as agreed by the parties or
(b)    as determined by a medical assessor, or
(c)    within two months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.”
An exception exists in s 281(2A) of 1998 Act in that the insurer may within the two month period notify the claimant that the degree of permanent impairment “is not fully ascertainable”.
The applicant’s Permanent Impairment Claim Form and attachments was sent to the insurer by email on 24 February 2022.[2] The insurer responded on the same day confirming that “your email has been received and any related documentation or correspondence will be attached to the relevant claims file. A member of our Claims Team will contact you if further information is required…”.[3]
[2] Application at page 17.
[3] Application at page 18.
On 9 May 2022 the insurer emailed the applicant’s solicitor in the following terms:
“Good morning Toby
I hope you had a nice weekend.
I am reaching out to you to discuss the above lump sum claim for compensation for 15% that you lodged on behalf of Mr Dunn on 24/02/2022. I understand that you have a busy morning, however, ask if you would please give me a call on the phone number below at your earliest convenience…”[4]
[4] Application at page 19.
It would appear that Mr Tancred did in fact telephone the relevant claims officer because an email from the insurer dated 9 May 2022[5] says “Hi Toby Thank you for your time just now”. That email attaches a letter sent to the applicant on 6 May 2022 “providing 3 IME options”.
[5] Application at page 21.
It will be observed, pausing here, that the applicant’s solicitor served the Permanent Impairment Claim Form and attachments on 24 February 2022 but there is no evidence that the insurer did anything about it until 9 May 2022. That means (and it is not submitted otherwise) that the insurer has not determined the claim within the time prescribed by s 281.
The respondent in its submissions[6] says as follows:
“6. The respondent submits that its right to refer the worker for an independent medical examination for the purposes of obtaining an assessment of permanent impairment resulting from the injury stands independent of any claims determination obligation imposed upon it by s 281 of the 1998 Act.”
[6] Respondent’s submissions dated 23 June 2022 at [6].
That then raises the issue of whether, notwithstanding the respondent’s failure to comply with s 281, it can nonetheless rely upon s 119 of the 1998 Act. The respondent says that it can[7] and the applicant says that it cannot.[8]
[7] Respondent’s submissions dated 23 June 2022 at page 3 at [6].
[8] Applicant’s submissions dated 29 June 2022 at page 2 at [8].
Section 119 of the 1998 Act includes the following:
“119 (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.”
There are other sub-sections within s 119 which deal with Workers Compensation Guidelines, regulations and the provision of reports.
The respondent has offered some submissions concerning Part 7 of the Workers Compensation Guidelines[9] but it is clear in my view that the provisions headed “7.1 Reason for Referral”[10] offer directives to insurers concerning how to deal with independent medical examinations but do not necessarily constrain the applicant in his or her response to such a request. Indeed, the respondent’s submissions[11] acknowledge that “the mandatory obligations for insurers when they require a worker to attend an IME are outlined below”.
[9] Respondent’s submissions dated 23 June 2022 at pages 1 – 2.
[10] Respondent’s submissions dated 23 June 2022 at page 2.
[11] Respondent’s submissions dated 23 June 2022 at page 2.
It is therefore clear that the Guidelines, from the point of view of the applicant, apart from noting the provisions of s 119, impose no further edicts.
The respondent’s argument[12] that because the applicant is receiving weekly payments, he must attend a medical examination is in my view of no relevance to the current claim but a close consideration of s 119 of the 1998 Act is in my view necessary. Although the respondent declined to determine the claim and may potentially suffer some consequences because of that (as to which I offer no view) the considerations would appear to be in the following order:
(a)    the applicant has given notice of an injury (s 119(1) of the 1998 Act);
(b)    if the applicant is receiving weekly payments of compensation (this is unclear) the applicant must submit to examination by a medical practitioner, provided and paid by the employer (s 119(2)), and
(c)    if the applicant refuses to so submit, “the worker’s right to recover compensation under this Act with respect to the injury… is suspended until the examination has taken place…”.
[12] Respondent’s submissions dated 23 June 2022 at page 2 at [5].
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.
I would add that the Commission has jurisdiction to consider the matter as “a dispute about a claim for lump sum compensation” because s 289(3)(c) contemplates determination by the Commission where the person on whom the claim is made “fails to determine the claim as and when required by this Act”. There is no necessary dovetailing, in my view, between
s 119 and s 289 because the former deals with notice of injury and/or receipt of weekly payments and the latter deals with the Commission’s jurisdiction in the event of a dispute, where a dispute contemplates a failure to determine a claim.
In those circumstances the appropriate Directions are as follows:
(a)    the applicant’s right to recover compensation under this Act is suspended until an examination has taken place by a medical practitioner provided and paid by the employer (s 119 of the 1998 Act);
(b)    the conciliation and arbitration hearing set down for 4 August 2022 at 10.00am is vacated;
(c)    the respondent is to arrange independent medical assessment of the applicant to occur before 30 September 2022;
(d)    provided that the applicant attends a medical examination at the request of the employer before 30 September 2022 the medical assessment set down for
Dr Andrews on 9 November 2022 may proceed.
(e)    either party has liberty to apply in respect of vacation of the medical assessment appointment of 9 November 2022 and otherwise and in respect of a further hearing date.

[2022] NSWPIC 379

13 July 2022