Gaudry v Coles Group Supply Chain Pty Limited - [2021] NSWPIC 14

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gaudry v Coles Group Supply Chain Pty Limited [2021] NSWPIC 14
APPLICANT:	Bobbie Gaudry
RESPONDENT:	Coles Group Supply Chain Pty Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	10 March 2021
CATCHWORDS:	WORKERS COMPENSATION- suspension of weekly compensation for failure to attend a medical examination; notice of examination confused power to arrange independent medical examination and to assess work capacity; notice did not comply with Part 7 of the Workers Compensation Guidelines; payments purportedly suspended for failure to attend work capacity assessment rather than independent medical examination; Held- that suspension was not warranted and order that payments be reinstated.
DETERMINATIONS MADE:	1. I find that the respondent was not entitled to suspend weekly compensation under s 44A of the Workers Compensation Act 1987 on 15 December 2020. 2. The respondent is to reinstate payments of weekly compensation from 15 December 2020. 3. I decline to order interest.

STATEMENT OF REASONS

BACKGROUND

Bobbie Gaudry is employed by Coles Group Supply Chain Pty Limited (Coles). He suffered back injury on 18 January 2019 and his claim for compensation was accepted.
On 11 November 2020 Coles asked Mr Gaudry to attend a medical examination by Dr M Jones. Mr Gaudry did not attend and Coles suspended his payments of compensation.
On 16 December 2020 Mr Gaudry filed a Miscellaneous Application, seeking:
(a)    A determination that he was not required to attend the examination on 15 December 2020;
(b)    A determination that Coles was not entitled to suspend his payments from 15 December 2020;
(c)    An order that weekly compensation be reinstated from 15 December 2020, and
(d) An order for interest under s 110 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) from 15 December 2020.

PROCEDURE BEFORE THE COMMISSION

The parties attended a telephone conference on 28 January 2021 when Mr Brenna, solicitor, appeared for Mr Gaudry and Mr Mileski, a solicitor employed in house, appeared for Coles,

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

The parties were, unfortunately, not able to discuss the matter constructively at the telephone conference. Coles sought to rely on additional evidence and I directed that an Application to Admit Late Documents be filed by 4 February 2021. The parties were directed to file written submissions and Mr Gaudry’s solicitor did not seek a right of reply.

In addition to those provided for in the timetable, Mr Gaudry filed submissions in reply on 19 February 20210 to which Coles objected by an email dated 22 February 2021. Though Mr Gaudry did not object to a reply, I asked that the Commission inform the parties that I would not permit it. My reasons follow.

It is conventional that the moving party in civil proceedings has the right to make the final submissions to a court or tribunal. In this case that is Mr Gaudry. Proceedings in the Commission are to be finalised in a timely manner. That obligation would not be advanced by permitting further submissions in reply. Having reviewed the submissions filed on behalf of Mr Gaudry, the objects of the Commission would not be advanced by further submissions on behalf of Coles. Any further submissions in response to Mr Gaudry’s submissions in reply would only delay resolution of the issue.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Miscellaneous Application and attached documents;
(b) Reply;

(c) Coles’ Application to Admit Late Documents dated.

The Application attached correspondence which described the current dispute. On 30 September 2020, a representative of Coles wrote to Mr Gaudry and told him they had arranged a vocational assessment on 9 October 2020. Mr Gaudry’s solicitor wrote to him on 1 October 2020 and told him that he was required to attend the appointment under s 44A of the Workers Compensation Act 1987 (the 1987 Act). He suggested it was likely that a work capacity decision would be made.
On 11 November 2020, Coles wrote to Mr Gaudry and asked him to attend an examination by Dr M Jones, sports physician, on 15 December 2020. The letter told Mr Gaudry that if he did not attend, his payments of compensation may be suspended. The letter cited part of s 44A of the 1987 Act, misdescribing it as part of the 1998 Act:
“Section 44A of the Workers Compensation Act 1998 [sic]
(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.
(5) An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.
(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker's failure to properly participate in it, the worker's right to weekly payments is suspended until the assessment has taken place.”
Mr Gaudry’s solicitor wrote to Coles on 16 November 2020 and said that he considered the requirement to attend unreasonable, noting that the appointment was described as an independent medical examination but that s44A had been invoked. Pursuant to s 119 of the 1998 Act, Mr Gaudry’s solicitor said that the reasons given for requiring the examination are not those set out in the Workers Compensation Guidelines (the Guidelines) and there was no evidence that information had been sought from treating doctors which Coles was unable to obtain.
The claims officer from Coles responded on 8 December 2020 stating that Mr Gaudry had commenced physiotherapy with a new provider and that only one session was approved. Coles said that it had not been informed of the identity of the provider and had not received an Allied Health Recovery form. It therefore insisted on the examination and again threatened suspension of payments. Mr Gaudry’s solicitor asked Mr Gaudry to provide those details.
On 10 December 2020, Coles told Mr Gaudry that it would review his treatment needs when it had Dr Jones’ report and threatened suspension of payments if he did not attend.
On 15 December 2020 Coles wrote to Mr Gaudry and informed him that his payments would be suspended until he attended the consultation with Dr Jones. The letter said that he had:
“failed to attend without medical justification to the following appointments;
• 22/10/2019 - Dr Raymond Wallace - Late Cancellation 21/10/2019
• 12/9/2019 - Assoc Prof Paul Miniter - Non-Attendance
• 3/2/2020 - Dr Vidyasagar Casikar - Non-Attendance
• 2/4/2020 - Dr Richard Sekel - Non-Attendance
• 15/12/2020 - Dr Mark Jones - Non-Attendance”.
An email dated 16 December told Mr Gaudry that his payments would resume when he “commenced complying” but told him that there would be no back payment for the period of the suspension.
The Reply filed by Coles attached material dating back to February 2019. It contained material going to other disputes about medical examinations.
On 7 January 2020 Coles wrote to each of Dr E Lim and Dr P Khong whom it understood were treating Mr Gaudry. On the same day, it wrote to Mr Gaudry and asked him to attend a medical examination because if had not received a response to its requests for information. The letter told Mr Gaudry that the examination was arranged under s 119 of the 1998 Act and that payments may be suspended if he did not attend. Coles received a report from Dr Khong.
Mr Gaudry did not attend. His solicitor told Coles that the examination was unreasonable because the reasons given for the appointment did not justify an examination by an independent medical examiner (IME) in accordance with the Guidelines.
In March 2020 Mr Gaudry’s capacity for work was downgraded and further reports were sought from his treating doctors. Injury management consultation was arranged. Again, Mr Gaudry was told that they need to attend my result in suspension of payments. A letter dated 1 April 2020 told him that the appointment was required because it had not received a response from his general practitioner about the cause of his recent downgrade it cited section 119 of the 1998 Act.
A file note from the claims officer dated 21 April 2020 records a conversation with a return to work co-ordinator who had a “heated conversation around treatment and RTW. TM refuses to attend any IME, Now or ever.” I understand TM to refer to team member.
Mr Gaudry’s solicitor wrote to Coles, referring to previous correspondence and stating that Mr Gaudry would not attend. He noted that s 119 did not apply to examinations by an Injury Management Consultant (IMC). Coles said they would arrange a Stage 2 IMC report with Dr R Sekel which would take place either as an appointment or a file review.
Dr Sekel provided a report dated 12 May 2020 and attached his fax to Dr Khong recommending an upgrade in duties to which Dr Khong agreed. Dr Sekel said that he was unable to complete his report without a face to face examination but said that it appeared likely that Mr Gaudry was fit for unrestricted hours and duties.
Coles wrote to Mr Gaudry on 13 July 2020 and told him that it had referred him to an external provider for a Vocational and Functional Assessment. Mr Gaudry’s solicitor wrote to Coles questioning the reason for the assessment when Dr Khong had recently said that Mr Gaudry was not yet fit for his pre-injury role and hours.
In September 2020, Mr Gaudry’s general practitioner said that Mr Gaudry was unfit to attend a functional assessment at the risk of aggravating his symptoms.
Coles wrote to Mr Gaudry’s general practitioner on 11 January 2021 seeking a report. On the same day, it arranged another appointment with Dr Jones and again threatened suspension of payments under s 44A (which it said appeared in the 1998 Act).
Coles’ Application to Admit Late Documents attached some more recent material, some of which post dated the telephone conference.
A somewhat cryptic file note dated September 2020 set out a conversation between Mr Gaudry and Coles’ claims officer.
On 11 December 2020, Mr Gaudry’s physiotherapist, Mr R Kim, told his general practitioner that he had experienced difficulty assisting Mr Gaudry and Coles to “understand each other.” He considered that Mr Gaudry was fit for some work but not pre-injury duties. Mr Kim recommended stopping treatment for a time and that Mr Gaudry should continue daily exercises.
Dr Khong reported to Mr Gaudry’s general practitioner on 11 December 2020 and summarised his treatment to date. He suggested that Mr Gaudry may be ready to return to work on light duties, increasing slowly as tolerated. He supported ongoing physiotherapy which Mr Gaudry found helpful.
An email from Mr Gaudry in response to the further request for examination appears as a series of dots, slashes and dashes and a subsequent email from another officer of Coles said that it reads “ I will not be attending” in Morse code.
In a report dated 12 January 2021, Dr Khong said that he had seen Mr Gaudry on four occasions in person until April and four occasions by telehealth until December 2020. He said that Mr Gaudry’s original neurological examination was unremarkable and that his complaints were mainly subjective back and leg pain. Dr Khong said that Mr Gaudry felt he could return to some light duties and that he had not pushed himself. Dr Khong considered that his aggravation had improved but it was difficult to say if it had resolved. He said that
Mr Gaudry was motivated to return to work and recommended that he do so, increasing slowly as tolerated.
Further emails suggest that Mr Gaudry’s general practitioner downgraded his capacity to nil in January 2021. A further appointment with Dr Jones was arranged and Mr Gaudry said that he would not attend.
The medical certificate dated 13 January 2021 is inconsistent and it is not surprising that Coles sought clarification. It said that Mr Gaudry was unfit but also set out restrictions on suitable duties. A further certificate dated 27 January 2021 again certified him fit for selected duties.
An injury management plan was completed on 2 February 2021. It included among
Mr Gaudry’s obligations:
“Attend medical appointments, including the Independent Medical Examination scheduled by Coles Teamcover to assist with your ongoing injury management and / or return to work management
S44A of the Workers Compensation Act 1987 (6) If a worker refuses to attend
an assessment under this section or the assessment does not take place
because of the worker's failure to properly participate in it, the worker's right to
weekly payments is suspended until the assessment has taken place.”

SUBMISSIONS

Before setting out the submissions, it is appropriate to set out the legislation in full.

Section 44A of the 1987 Act provides:
“44A Work capacity assessment
(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.

(2) A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the Workers Compensation Guidelines.
(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.
(4) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it.
(5) An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.
(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.”
Section 119 of the 1998 Act provides:

“119   Medical examination of workers at direction of employer
(cf former s 129)
(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.”

Mr Brennan, in submissions prepared for Mr Gaudry referred to s119(4) of the 1998 Act and the Guidelines which provide in Part 7.1:

“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.”

Part 7.7 provides:

“The insurer must consider whether the requirement to attend an IME is reasonable in the circumstances.
…
The insurer must consider this objection and advise the worker of their decision following this consideration. 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.”

Mr Brennan summarised the correspondence and said it was clear that Coles had not responded to his email dated 16 November 2020 in which he noted that Coles had not provided the information set out in the Guidelines so that s 119(4) must apply.
Mr Brennan said that the issue before the Commission is narrow and relates only to the non-attendance at an examination on 15 December 2020 and the suspension of payments. He anticipated, as a result of submissions foreshadowed at the telephone conference that Coles would argue that the appointment was made pursuant to s 44(5). He therefore attached a letter dated 30 September 2020 setting out the details of a vocational assessment on 9 October 2020 which was said to be part of a work capacity assessment.
Mr Brennan said that the letter from Coles dated 11 November 2020 did not say that the appointment with Dr Jones was part of a work capacity assessment. He said that the correspondence from Coles’ claims officer referred to the appointment as being with an IME. He said that the appointment on 15 December was an IME appointment and Coles was not entitled to it.
In submissions prepared by Mr Andrew Parker of counsel, Coles submitted that it had sought to have Mr Gaudry examined by various practitioners pursuant to s 119 and s 44A. Mr Gaudry failed to attend five examinations between 22 October 2019 and 15 December 2020 and “as a result his payments were suspended.”
Mr Parker submitted that Mr Gaudry bore the onus but provided no statement evidence, relying only on correspondence, which was unusual in a case where it was suggested that the examination was not reasonable (s 119) or not lawful (s 44A). He said that Mr Gaudry treated the requests for an examination trivially noting the email in morse code and the file note dated 21 April 2020 in which Mr Gaudry was reported as saying he would not attend an IME.

Mr Parker said that Mr Gaudry refused to attend the appointments based on “a personal, subjective, and recalcitrant desire to stifle the respondent’s attempts at trying to have him assessed” and there was no evidence he could give in support of the application.
Mr Parker said that the controversy appears to be that the request under s 119 to attend the examination was unreasonable and that it was not for the purpose of a work capacity assessment. There was, however, no reference to s 119 to the request and it was understood to relate to be for the purpose of s 44A because of an email sent to Mr Gaudry by his solicitor.
He submitted that the “suggestion made by the applicant is a suggestion that the respondent blatantly, wilfully, misused its powers, so as to coerce the applicant into attending an examination for an ulterior purpose” was an inference which was not reasonably open and that the more likely conclusion “is that having considered that the applicant was completely unwilling to attend the appointments arranged under s 119, the respondent considered the only proper course to take was to require him to attend under s 44A.” Once the letters were sent, it was incumbent on Mr Gaudry to attend the appointments. Because he did not, Coles was entitled to suspend payments.
Mr Parker summarised the medical evidence which appears in the file, noting that it is brief. He said that the MRI scan did not show any structural reason for his ongoing restrictions and there is no obvious reason why he was unable to increase his hours as suggested by Mr Kim. He has never been assessed by an IME. He said it is obvious that the information from Mr Gaudry’s treating doctors is inadequate, causation is in issue and numerous requests were made to treating practitioners which were not answered. Mr Parker said that there is inconsistency between a minor injury and the level of capacity. He said that s 119 must have work to do, it was reasonable for Coles to seek to have Mr Gaudry assessed and the full terms of s 119 have been engaged so that the suspension, under either section, was appropriate.
Mr Brennan prepared submissions responding to each of the paragraphs. Essentially he highlighted the narrow substance of the dispute – that the appointment arranged for 15 December 2020 was not arranged under s 44A. He confirmed the argument that an IME examination is unreasonable, relying on s 119 and the Guidelines and noted that the purported suspension was under s 44A.
None of the submissions dealt with the claim for interest.

FINDINGS AND REASONS

It is important to note that Mr Gaudry has obligations under the legislation. Section 47 of the 1998 Act requires him to cooperate in the obligations imposed under an injury management plan and s 48 requires him to make reasonable efforts to return to work if he has current work capacity. In short, he is required to cooperate in the management of his claim.
Mr Gaudry’s response to a request to attend an appointment in morse code was entirely inappropriate, regardless of whether Coles was entitled to arrange an examination or not. If he did say that he would not attend any IME, that was also inappropriate.
I am not required to determine any issues about Mr Gaudry’s injury or capacity. It is clear that Coles has felt a level of frustration at his slow recovery from an injury which Dr Khong, his treating neurosurgeon, considers was relatively minor. The cancelled appointments were no doubt frustrating.
However Coles is required to manage the claim within the parameters of the legislation and to take care to apply the legislation properly. It was required to ensure that medical appointments were arranged for a proper purpose and in accordance with the Guidelines.

The power of an insurer or self-insurer to suspend payments is a serious one. If payments are to be suspended, the suspension must be undertaken strictly in accordance with the legislation.

Coles arranged a vocational assessment for 9 October 2020. Mr Gaudry was told by his solicitor to attend the examination because s 44A required him to do so. As I understand the evidence he attended that appointment. That appointment fell within the terms of the section.

The relevant examination which Mr Gaudry did not attend was an independent medical examination by Dr Jones on 15 December 2020. It was described as an independent medical examination in one of the letters dated 11 November 2020. Another letter of the same date, which can only be about the same appointment, is less precise and informed Mr Gaudry that he was required to attend the appointment to “review your work capacity for employment, treatment and prognosis.” It told him that if he did not attend his payments may be suspended, quoting part of s 44A but stating that it was from “the Workers Compensation Act 1998” and not the 1987 Act. Coles’ correspondence contains a number of errors of that nature.
Section 119 of the 1998 Act allows independent medical examinations to be arranged. Sub-section (3) provides for the suspension of payments for failure to attend.
The appointment was objected to because of the Guidelines. Part 7 states - before the parts on which Mr Brennan relies – that:

“An independent medical examination (IME) is an assessment conducted by an appropriately qualified and experienced medical practitioner to help resolve an issue in injury or claims management.
An insurer may direct a worker who has given notice of an injury or is receiving weekly payments of compensation to attend an IME.”

The Guidelines require that certain information be noted on the claim file, including evidence of attempts to contact treating providers. The Guidelines also state that the worker be advised of the reason for the appointment.
In the circumstances disclosed by Coles’ file it is likely that an independent examination was warranted.
However Mr Gaudry was not told that the appointment was necessary because of the delay in obtaining reports from treating doctors. It appears clear that the reports of Dr Khong and Mr Kim were obtained after the appointment was arranged, after some effort. Mr Gaudry was told that the appointment was to review his work capacity.
I do not accept Mr Brennan’s submission that Coles was required to provide evidence that it was unable to obtain reports from treating doctors – it was required to explain the reason the report was required. Any references to evidence in the Guidelines are in terms of what Coles was required to record on the claim file.
If Coles had clearly set out the reason why it required an independent examination and explained the power of suspension in s 119(3) and if Mr Gaudry had not attended, the result might have been different. Instead the correspondence confused two different obligations and powers.
When payments were suspended by the letter dated 15 December 2020, Coles purported to act under s 44A, on this occasion identifying the correct legislation. It sought to rely on past non-attendances for both independent examinations and work capacity assessments, eliding two separate obligations. The past non-attendances may have been a source of frustration but those that occurred in the past could not be relied on to suspend payments in December 2015.
Mr Parker’s submissions deal with the matter in the same way and conflate the two issues. When the power to suspend payments has such significant consequences, it must be used carefully. That did not occur in these circumstances.
Coles was therefore not permitted to suspend Mr Gaudry’s weekly compensation payments. Coles is ordered to reinstate Mr Gaudry’s weekly compensation from 15 December 2020.
That order only applies to the circumstances under consideration and reflects the fact that Coles took steps to suspend voluntary compensation in a way which was not available to it. The order is for reinstatement of voluntary compensation and does not constitute an award of compensation.
The power to award interest is discretionary. Even if submissions had been made, I do not consider that an award of interest is appropriate in light of the history of the claim.
I make these orders:
(a) I find that the respondent was not entitled to suspend weekly compensation under s 44A of the 1987 Act on 15 December 2020.
(b) The respondent is to reinstate payments of weekly compensation from 15 December 2020.
(c) I decline to order interest.

Catherine McDonald
MEMBER

10 March 2021