Green v Seven Network (Operations) Ltd
[2021] NSWPIC 458
•16 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Green v Seven Network (Operations) Ltd [2021] NSWPIC 458 |
| APPLICANT: | Piper Green |
| RESPONDENT: | Seven Network (Operations) Ltd |
| MEMBER: | Carolyn Rimmer |
| DATE OF DECISION: | 16 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; worker a contestant in a reality television program, who claims injury due to vilification and bullying in the course of employment; whether right to recover compensation suspended pursuant to section 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); whether worker refused to submit to examination pursuant to section 119(1) of the 1998 Act; worker agreed to attend examination by psychiatrist but not by psychologist; Godfrey v Wollongong Women's Information Service Inc discussed; Held - that a psychologist is not a medical practitioner and respondent could not compel the worker to attend an examination by a psychologist; entitlement to compensation is not suspended pursuant to section 119(3) of the 1998 Act. |
| DETERMINATIONS MADE: | 1. There has been no refusal by the applicant to submit herself for examination by a “medical practitioner” pursuant to s 119(1) of the Workplace Injury Management and Workers Compensation Act 1998. 2. Any entitlement to recover compensation is not suspended pursuant to s 119(3) of Workplace Injury Management and Workers Compensation Act 1998. |
STATEMENT OF REASONS
BACKGROUND
Piper Green (the applicant) was employed by the respondent, Seven Network (Operations) Limited as a contestant in a reality television program, “My Kitchen Rules”. The respondent was insured by GIO General Limited (the insurer) at all relevant times.
The applicant sustained a psychological injury over the course of her role in “My Kitchen Rules” due to alleged vilification and bullying from producers and the network.
A dispute has arisen in this case as to whether the applicant’s right to recover compensation in respect of the claimed injury has been suspended pursuant to s 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) owing to a failure of the applicant to submit herself for examination by a psychologist at the request of the respondent’s insurer.
The applicant filed a Miscellaneous Application (the Application) dated 24 September 2021 seeking an order that the applicant was not required to attend the appointment with Professor Richard Mattick and that the determination to suspend weekly payments from 13 October 2021 was void.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether there has been a refusal by the applicant to submit herself for examination by a “medical practitioner” pursuant to s 119(1) of the1998 Act.
(b) Whether any entitlement to recover compensation is suspended pursuant to s 119(3) of the 1998 Act.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation conference and arbitration via telephone on 10 November 2021. Ms Green was represented by Ms Eraine Grotte, who was instructed by Mr Carmine Santone of Santone Lawyers. The respondent was represented by Mr Stuart Grant, who was instructed by Ms Olivia Raiman of Hall & Wilcox Lawyers. Ms Laura Jones from the insurer attended the conference.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant and dated 4 November 2021 and attached documents;
(d) Application to Admit Late Documents filed by the applicant and dated 5 November 2021 and attached documents;
(e) Report of Dr Yan dated 22 June 2021 filed by the applicant, and
(f) emails between Melissa Gilkes and the respondent’s solicitors dated 23 October 2021 and 8 November 2021 filed by the respondent.
The report of Dr Yan dated 22 June 2021 and the emails between Melissa Gilkes and the respondent’s solicitors dated 23 October 2021 and 8 November 2021 were sent to me during the arbitration. I directed the solicitors who sent those documents to me to file copies in the Commission Registry.
Procedural History
The applicant commenced proceedings (Matter No 6757/20) in the Workers Compensation Commission (WCC) seeking payment of weekly benefits. The parties reached agreement in a telephone conference on 17 February 2021 that the matter was resolved subject to agreement on the rate for pre-injury average weekly earnings (PIAWE).
The parties then advised the WCC that they were unable to reach agreement on PIAWE and the matter was determined on the papers.
An Amended Certificate of Determination (COD) dated 5 May 2021 determined that the applicant’s PIAWE was $500. The respondent was ordered to pay weekly compensation as follows:
(a) 24 December 2018 to 25 March 2019 at $475 per week pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) 26 March 2019 to date and continuing at $400 per week pursuant to s 37 of the 1987 Act.
In a letter dated 3 June 2021 to the applicant, the respondent’s solicitor requested that the applicant attend an appointment with Professor Mattick on 30 June 2021.
In a letter dated 8 June 2021 to the applicant, the respondent’s solicitor noted that the applicant declined to attend the forensic psychological assessment appointment with Professor Mattick and that a refusal to attend the appointment could result in the suspension of weekly benefits under s 119(3) if the 1998 Act. The respondents solicitor wrote:
“Professor Mattick has extensive clinical and training experience over decades and in our view, his expertise are appropriate in assessing your client and indeed one of a medical practitioner enlivening section 119 of the 1998 Act. He will be conducting forensic psychological assessment that encompasses your client’s diagnosis, any recommended treatment and any treatments your client has received. Professor Mattick will provide a medical opinion which will assist in the ongoing management of your client’s claim.
We note ‘medical practitioner’ is not defined in the Workers Compensation Act 1987 (1997 Act) and to anticipate any objection on the basis of Professor Mattick not being a medical practitioner we refer you to the amendments of Standard 32.5 of the SIRA Standards of Practice. The amendment included the allowance of a workers certificate of capacity to be completed by a treating psychologist. Therefore, as a treating psychologist is able to provide a certificate of incapacity for work, we maintain our position that a forensic psychologist is a medical practitioner for the purposes of s 119 of the 1998 Act.”In an email dated 10 June 2021 from Mr Slocombe of Hall & Wilcox to Ms Raiman and Ms Jones, Mr Slocombe stated that the applicant’s solicitor was “happy for the IME to be pushed back to October”.
On 1 September 2021 the applicant’s solicitor made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. The claim for lump sum compensation attached the forensic report of psychiatrist, Dr Ash Takyar, dated 29 August 2021. Dr Takyar, in his report dated 29 August 2021, referred to a report by Dr Victor Yan, general practitioner, dated 9 June 2021 and the clinical notes of a psychologist, Ms Melissa Gilkes.
On 10 September 2021, the respondent’s solicitor notified the applicant that a further medical examination was required to properly respond to her claim. The respondent arranged for the applicant to be medically examined by Professor Mattick, clinical psychologist, on 13 October 2021 (2 hours) and on 28 October 2021 (2 hours) and by Dr Graham George, psychiatrist, on 29 November 2021. Hall & Wilcox noted that their client had insufficient medical documentation to determine the applicant’s claim. Further, in order to be satisfied that the applicant had an ongoing incapacity for work, had reached maximum medical improvement and had received the most appropriate treatment, the insurer requested that the applicant attend upon an independent medical examiner (IME) to help assist in considering her claim.
In the letter dated 10 September 2021, the respondent’s solicitor wrote:
“Professor Mattick will be conducting a forensic psychological assessment that encompasses not only your client’s lump sum compensation claim, but also addressing diagnosis of your condition, and the treatments your client has received. The results of the forensic psychological assessment undertaken by Professor Mattick will be provided to Dr George to assess whether maximum medical improvement has been reached and if so, the assessment of impairment. Issues of diagnosis, treatment received and treatment required are all relevant to the issue of maximum medical improvement and in turn impairment.”
In an email dated 13 September 2021, the applicant’s solicitor confirmed that the applicant would not be attending two medicolegal appointments. The applicant’s solicitor maintained that Dr George was able to provide an opinion in respect to all aspects of the permanent impairment claim and the applicant would only be attending that appointment.
In a letter dated 14 September 2021, the respondent’s solicitor noted that the applicant had agreed to attend the appointment with Dr George but declined the request to attend the appointments with Professor Mattick. The respondent’s solicitor wrote:
“We remind you of your client’s obligation under section 119 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) which states 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. In accordance with section 119(3) of the 1998 Act, if your client refuses to submit herself for any examination or in in any way obstructs the examination, her right to weekly payments will be suspended until the examination has taken place”.
In an email dated 14 September 2021 the applicant’s solicitor stated that the applicant’s position remained the same, however, if “you can provide evidence from Dr George to indicate that he does not have the expertise to address the issues as raised in your letter today, we will seek further instructions.”
In an email dated 15 September 2021 the applicant’s solicitor stated that the reasons for the assessment had not been clearly articulated to the applicant and the respondent had not adequately considered the applicant’s position as to why the assessment with Professor Mattick was unreasonable nor provided adequate explanation as to why her concerns have not been accepted. In particular, the applicant’s solicitor noted that there was no medical evidence to suggest that psychometric testing was necessary. Further, Dr George had not indicated that he did not have the expertise to conduct an assessment of whole person impairment nor had he indicated that psychometric testing was required and indeed no doctor had indicated psychometric testing is required.
In a letter dated 16 September 2021, the respondent’s solicitor requested confirmation that the applicant would attend the appointments with Professor Mattick.
On 13 October 2021 the insurer issued a Notice of Suspension of Benefits under s 119 of the 1998 Act noting that the applicant had failed to attend the psychometric testing appointment with Professor Mattick on 13 October 2021 and as a result of the non-attendance weekly payments were suspended until a new examination took place.
On 28 October 2021 a further Notice of Suspension of Benefits under s119 of the 1998 Act was issued by the insurer confirming that the applicant had failed to attend a further psychometric testing appointment with Professor Mattick on 28 October 2021and weekly compensation payments would be suspended until the applicant complied with the request to attend the IME appointment with Professor Mattick.
In the Reply, filed on 15 October 2021, the respondent submitted that a forensic psychologist was a medical practitioner for the purpose of s 119 of the 1998 Act. The respondent relied on s 175 of the Workers Compensation Regulation 2016 and Standard 32.5 of the SIRA Standards of Practice, which allow a psychologist to provide a certificate of incapacity for work.
Submissions
The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the applicant submitted that weekly benefits could not be suspended as Professor Mattick was not a medical practitioner as defined by the legislation.
The applicant submitted that the respondent had not complied with the provisions in Pt 7 of of the Workers Compensation Guidelines issued 1 March 2021 including cl 7.21, cl 7.5, and cl 7.7.
Further, the applicant submitted that the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) were also relevant and provided that evaluation of psychiatric impairment was to be conducted by a psychiatrist who has undergone appropriate training. A qualified psychiatrist was permitted to draw upon a range of evidence to inform the diagnosis, including psychometric testing. The applicant submitted that this guideline did not mandate psychometric testing as a necessary prerequisite for giving a diagnosis.
The applicant submitted that Dr Takyar made an assessment in accordance with the Guidelines in the absence of psychometric testing. Dr Takyar did suggest that testing would help him diagnose the applicant and there was no evidence from Dr George that he considering testing was necessary in order for him to make an assessment of the applicant.
The applicant submitted that there did not appear to be any attempt to obtain the necessary information from the treating practitioner.
The applicant submitted that she had satisfied s 119 by submitting to examination by Dr George.
The applicant submitted that the respondent had not complied with the provisions of cl 7.5, cl 7.2.1 and cl 7.7 of the Workers Compensation Guidelines which commenced 1 March 2021.
The applicant sought an order that she was not required to attend the appointment with Professor Mattick and that the determination to suspend her benefits from 13 October 2021 was void.
The respondent submitted that the applicant had unreasonably refused to attend assessment in accordance with s 119 of the 1998 Act. The respondent submitted that it had complied with the relevant Guidelines, in requesting the examination with Professor Mattick. The respondent argued that Professor Mattick was a specialist medical practitioner with qualifications relevant to the treatment of the applicant’s injury, which was psychological in nature and he was appropriately qualified as a psychologist registered with the Australian Health Practitioner Regulation Agency and by the Psychology Board of Australia.
The respondent argued that Professor Mattick’s opinion was to be obtained for the purposes of providing information to assist with the applicant's workers compensation injury and to assist in the determination of the new claim for lump sum compensation. The respondent noted that the clinical notes from the treating psychologist, Ms Gilkes, were not available at the time examination was arranged.
The respondent referred to the decision of State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 with regard to the interpretation of the term “medical practitioner” in s 119 of the 1998 Act.
The respondent submitted that Professor Mattick’s speciality as a clinical psychologist was distinct from that of Dr George’s as a psychiatrist. The applicant had received treatment from both specialties, that is a psychologist and a psychiatrist and, in the circumstances, the respondent was entitled to rely on multiple forensic reports from doctors with those specialisations. The respondent submitted that Professor Mattick administered psychometric testing including which was a different method of assessment and addressed different issues to the independent medical examination with Dr George.
FINDINGS AND REASONS
Section 119 of the 1998 Act provides as follows:
“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.”The obligation imposed upon a worker by s 119(1) of the 1998 Act is to submit herself for examination by a “medical practitioner”, provided and paid by the employer.
Part 7 of the Workers Compensation Guideline is headed “ Independent medical examinations and reports”. Cl 7.2 of Pt 7 provides:
“7.2 Qualified and appropriate independent medical Examiners.
All independent medical examiners must be appropriately qualified medical practitioners with the expertise to adequately respond to the question(s) outlined in the referral. They must have qualifications relevant to the treatment of the worker’s injury…”
Therefore, the first issue that needs to be determined is whether a clinical psychologist is a “medical practitioner” for the purposes of an examination under s 119 of the 1998 Act.
The term “medical practitioner” is not defined in the 1998 Act. It was previously defined in s 59 of the 1987 Act but that definition has been repealed.
The respondent submitted that I should adopt a broad view of the definition of “medical practitioner”.
In Godfrey v Wollongong Women's Information Service Inc (1999) 19 NSWCCR 74 (Godfrey), the respondent arranged for the worker to be assessed by both a psychiatrist and a psychologist. The worker objected on the grounds that a psychologist was not a “medical practitioner”. Truss J in that case drew a distinction between the regimes governing the medical examination of workers where a matter was before the Compensation Court and workers subject to s 119 of the 1998 Act. The Court at [18] noted that the former regime employed the term “medical expert”, which was found to be broader than the term “medical practitioner” and included other experts such as psychologists. At [19] Truss J said:
“The Court was informed that the respondent wished to have the applicant examined by a psychologist firstly for the purposes of the forthcoming claim in respect to s60 expenses, although the only specific claim is for massage treatment, and secondly to assess the applicant’s ongoing entitlement to weekly compensation. The applicant is currently undergoing treatment from a psychologist as well as a psychiatrist and the respondent is paying for the cost of such treatment. As the only matter before the Court is a claim for massage treatment, such right as the respondent has to require the applicant to be examined to assess her ongoing entitlement to weekly compensation lies pursuant to s 119 and cl 43. Such right does not include examination by Ms Farrelly as she is not a medical practitioner.”
Arbitrator Homan in Yu v Spotless Services Ltd [2018] NSWWCC 299 referred to the decision in Godfrey when she considered the meaning of the term “medical practitioner” as it is used in s 119 of the 1998 Act and whether the term included a psychologist. Arbitrator Homan noted that the legislation governing the registration of health practitioners in New South Wales is the Health Practitioner Regulation National Law (NSW) 2009 and that statute draws a distinction between practitioners in the “medical” profession and other health professions including “psychology”. Section 113 provides that the title “medical practitioner” is a protected titled for use only by persons registered under in the “medical profession”. In s 5, psychologist is defined to mean a person registered under that Law in the psychology profession.
As noted above, the respondent referred to the decision of Snell DP in State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCC PD 48 (Bunce) in regard to the interpretation of the term “medical practitioner”.
Bunce was an appeal for a decision of Arbitrator Wynyard in Bunce v State of New South Wales - Central Coast Local Health District t/as Gosford Hospital [2020] NSWWCC 62. In that case, the respondent had argued that the worker had not established that the treatment had been given at the direction of a medical practitioner as Ms Paton was a psychologist. Reference was made to the decision of Bartolo v Western Sydney Health Service (1997) NSWCC1 where Burke J said: “’Medical practitioner’ is defined to mean a medical practitioner registered under the law of a State or Territory of the Commonwealth.” However, Arbitrator Wynyard accepted that Ms Paton was registered pursuant to the Commonwealth Income Tax Assessment Act 1970 for the purpose of psychological treatment under the Medicare system and inferred that she was a medical practitioner for the purpose of s 59(b) of the 1987 Act.
In the appeal, Snell DP only considered the question of whether the arbitrator erred in finding that an assistance dog constituted therapeutic treatment for the purpose of satisfying the definition of medical or related treatment pursuant to s 59 of the 1987 Act and whether the arbitrator had given adequate of sufficient reasons. Snell DP at [98] wrote:
“The Arbitrator’s findings included one that the requirement in para (b) of s 59, that the relevant treatment be by direction of a medical practitioner, was satisfied on the basis of a direction of Ms Paton, a psychologist. That finding was not challenged on appeal, there have been no submissions in relation to it and I have not considered its correctness. These reasons should not be taken as an endorsement of the approach taken to that issue.”
Both parties referred to Part 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition)(the Guidelines). At 11.2 the Guidelines provide:
“Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method.”
At 11.6 the Guidelines provide:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI)”.
I accept that the Guidelines provide for clinical assessment which may include the results of appropriate psychometric testing performed by a qualified clinical psychologist. However, such test results are not mandatory requirement for an assessment to take place. I do not consider that the provisions in Pt 11 of the Guidelines really assists the respondent’s arguments.
The respondent referred to the amendments of Standard 32.5 of the SIRA Standards of Practice which provided that certificates of capacity may be obtained from a treating physiotherapist or psychologist in respect of the second and subsequent certificates only from 17 April 2020 for 12 months. Standard 32.5 was a standard introduced for managing claims during the COVID-19 pandemic and the first certificate still had to be obtained from the nominated treating doctor. Therefore, I do not consider that this amendment changed the meaning of the term “medical practitioner” so as to include a psychologist for the purposes of s 119 of the 1998 Act.
Clause 75 of the Workers Compensation Regulation 2016 provided for a second or subsequent certificate as to work capacity to be given by a medical practitioner or if the worker was receiving medical or related treatment by a physiotherapist or psychologist, by a physiotherapist or psychologist. Clause 175(3) provides that: “This clause is to be repealed at the end of April 2022”. Again, the first certificate still had to be obtained from a medical practitioner and the regulation only applies for a limited period.
Professor Mattick, in a letter dated 12 October 2021, to the respondent’s solicitors stated that he was a registered health professional with the Australian Health Practitioner Regulation Agency (APRA), being an endorsed clinical psychologist. I note that Professor Mattick did not appear to describe himself as a medical practitioner in that letter. It is significant that Professor Mattick stated that he was registered with the Psychology Board of Australia, which keeps public national registers of registered psychologists. He made no reference to the Medical Board of Australia which is the board which keeps public national registers of all registered medical practitioners.
As noted the respondent argued that I should take a broad view in interpreting the term “medical practitioner”. However, the use of the term “medical practitioner” in the legislation and Guidelines rather that terms such as “health practitioner” or even “medical expert”, support the view that the term medical practitioner should be read to mean a person who is registered under the relevant law in the medical profession.
I agree with Arbitrator Homan that the term “medical practitioner” as it is used in s 119 (and elsewhere in the statutory regime including s 282 of the 1998 Act and cl 44 of the Workers Compensation Regulation 2016), should be interpreted consistently with the Health Practitioner Regulation National Law NSW and the term “medical practitioner” does not include a “psychologist”, that is, a person registered in the “psychology profession”. This approach is also consistent with the decision of Truss J in Godfrey.
It follows, that s 119(1) could not be used by the respondent to compel the applicant to submit herself to examination by a psychologist. Accordingly, there was no failure by the applicant to submit herself for examination for the purposes of s 119(3) and no suspension of the applicant’s right to recover compensation. I decline to make the order sought by the respondent pursuant to s 119(3).
Having made the findings above, it is not necessary for me to consider whether the request by the insurer that the applicant attend an appointment with Professor Mattick complied with the provisions in the Workers Compensation Guidelines.
SUMMARY
There has been no refusal by the applicant to submit herself for examination by a ‘medical practitioner’ pursuant to s 119(1) of the 1998 Act.
Any entitlement to recover compensation is not suspended pursuant to s 119(3) of the 1998 Act.
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