Kohlrusch v Macquarie Education Group Australia Pty Ltd - [2012] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Kohlrusch v Macquarie Education Group Australia Pty Ltd [2012] NSWWCCPD 15
APPELLANT:			Melanie Kohlrusch
RESPONDENT:			Macquarie Education Group Australia Pty Ltd
INSURER:			Employers Mutual NSW Ltd
FILE NUMBER:			A1-9668/11
REGISTRAR’S DELEGATE:		Mr S Paterson
DATE OF DELEGATE’S DECISION:			29 November 2011
DATE OF APPEAL DECISION:			22 March 2012
SUBJECT MATTER OF DECISION:			Appeals; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; refusal by Registrar’s delegate to make an interim payment direction; whether delegate determined the correct question; jurisdiction to hear appeal from decision made under Div 2 of Pt 5 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	W G McNally Jones Staff
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:			The appeal is misconceived and is dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998. Each party is to pay her or its own costs of the appeal.

INTRODUCTION

In this matter, the Registrar’s delegate determined that the worker was not entitled to an interim payment direction under Div 2 of Pt 5 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The essential issue on appeal is whether, in determining that issue, the delegate determined the wrong question and erred by failing to determine the matter under Div 2A of Pt 5 of Ch 7.
I have held that the delegate determined the correct question, namely, whether he should have made an interim payment direction for the payment of weekly compensation in circumstances where the insurer had declined to make provisional payments because there was insufficient medical information. In these circumstances, the question arises as to whether the Commission has jurisdiction to hear an appeal under s 352 of the 1998 Act against a decision of a delegate made under Div 2 of Pt 5 of Ch 7.

FACTUAL BACKGROUND

Ms Kohlrusch is a schoolteacher. In a claim form completed on 7 August 2011, she claimed compensation for a psychological injury. In support of her claim, she relied on a WorkCover medical certificate from her nominated treating doctor, Dr Lawrence, dated 3 August 2011. Dr Lawrence diagnosed her to have “Post Traumatic Stress Reaction With Depression” and to be unfit from 18 July 2011 to 10 August 2011. Under “[h]ow the injury occurred”, Dr Lawrence wrote, “Pt feeling threatened by demnds [sic] of headmaster”. Other, non-WorkCover certificates from Dr Lawrence dated 3, 9 and 16 August 2011 stated that Ms Kohlrusch was suffering from “post-traumatic stress reaction”.
On 11 August 2011, the respondent’s insurer, Employers Mutual NSW Ltd (Employers Mutual), sent to Dr Lawrence a pro forma letter requesting, among other things, confirmation of the clinical diagnosis in line with the DSM-IV guideline. Dr Lawrence replied on 18 August 2011 “Depression – but awaiting diagnosis from psychiatrist”.
Employers Mutual advised by letter dated 18 August 2011 that, under s 268 of the 1998 Act, it would not be commencing provisional payments of weekly benefits because of the following reasonable excuses:
(a) there was insufficient medical information, and
(b) it had been determined that the injury was not reported to the employer within two months of the date of injury.
Point (b) above has not been pressed and may be put to one side.
On 31 August 2011, Employers Mutual advised Ms Kohlrusch by letter that, because Dr Lawrence’s response to a request for information (presumably the request of 11 August 2011 noted at [4] above) was “inadequate”, it had arranged for her to be examined by Dr White, psychiatrist, on 28 September 2011.
The worker’s solicitor, Mr Brennan, wrote to Employers Mutual on 22 September 2011 stating, among other things, that Dr Lawrence’s certificate was “comprehensive and contains all the information you need to be able to provisionally pay the claim”. He also challenged Employers Mutual’s statement that there was a reasonable excuse not to provisionally pay the claim.
Mr Brennan added that the insurer’s letter of 18 August 2011 failed to comply with the WorkCover Guidelines for Claiming Compensation Benefits (the Guidelines for Claiming Benefits) and appeared to be invalid. He also added that the request to see Dr White was unreasonable because the letter did not set out the reasons for the referral, as required by the Guidelines made under s 119 of the 1998 Act, and did not provide details as to why Dr Lawrence’s response to the request was inadequate and what steps had been taken to resolve any queries the insurer had with Dr Lawrence.
Employers Mutual responded on 26 September 2011. So far as is relevant, that letter stated:
“In accordance with Section 268 of the Workplace Injury Management and Workers Compensation Act 1998, Employers Mutual has not commenced provisional payment of weekly benefits as a reasonable excuse has been applied.
The WorkCover Medical Certificate issued by Dr White [sic, Dr Lawrence] to date is insufficient as it fails to provide Ms Kohlrusch’s medical diagnosis in line with the DSM-IV guideline.
On 11/08/2011, Employers Mutual wrote to Dr White [sic] regarding Ms Kohlrusch’s current condition and requested a diagnosis in line with a DSM-IV diagnosis. Dr White [sic] was unable to provide Employers Mutual with the requested information to date.
Employers Mutual’s decision to apply a reasonable excuse in accordance with the WorkCover Guidelines for Claiming Compensation Benefits is therefore maintained.
Employers Mutual has organised an Independent Medical Examination with Dr Alan P White on 28/09/2011 to assist in confirming Ms Kohlrusch’s diagnosis in line with the DSM-IV guideline. Employers Mutual kindly request Ms Kohlrusch to attend and actively participate in this consultation, and any other investigations.”
Mr Brennan wrote to Employers Mutual on 27 September 2011 stating that, while both of the conditions diagnosed by Dr Lawrence appear in DSM-IV, it was not a requirement of the legislation that a diagnosis that appears in DSM-IV is necessary. He again requested that provisional payments be made and repeated that the request for Ms Kohlrusch to be examined by Dr White was unreasonable.
Employers Mutual responded on the same day, referring to a WorkCover certificate from Dr Lawrence dated 15 September 2011 in which the doctor diagnosed Ms Kohlrusch to have “Post Traumatic Stress”, which it said was “insufficient”, as it failed to provide a diagnosis “in line with the DSM-IV guideline”. It again requested Ms Kohlrusch to attend on Dr White to “assist in confirming Ms Kohlrusch’s diagnosis in line with DSM-IV”, which would “assist in obtaining the relevant information to allow Employers Mutual to make a liability decision regarding Ms Kohlrusch’s Workers Compensation claim”.
Ms Kohlrusch did not attend on Dr White on 28 September 2011. Employers Mutual wrote to her on that day, saying that it had “suspended making a liability decision” on the claim until she attended the scheduled appointment. In accordance with s 119 of the 1998 Act, a further appointment was made for Ms Kohlrusch to see Dr White on 26 October 2011.
Mr Brennan wrote to Employers Mutual on 7 October 2011, repeating the contents of his letter of 29 September 2011, which had repeated the contents of his letter of 27 September 2011 noted at [11] above.
Employers Mutual wrote to Ms Kohlrusch on 25 October 2011, stating that, under s 268 of the 1998 Act, it would not be commencing provisional payments of weekly benefits because “[t]here is insufficient medical information”. The decision was said to be in accordance with “the Guidelines” and was supported by the “Current WorkCover Medical Certificate”.
Mr Brennan wrote to Employers Mutual on 27 October 2007, serving a copy of a report from Dr Selwyn Smith, psychiatrist, dated 4 October 2011, and referring to Department of Corrective Services v Bowditch [2007] NSWWCCPD 244 (Bowditch). Dr Smith stated that the diagnosis of “post-traumatic stress reaction with depression” was consistent with a formal psychiatric disorder closely related to a “Post-traumatic Stress Disorder with depression”. He was sure the family physician had:
“expressed the broad symptomatologies associated with a Post-traumatic Stress Disorder and rather than using the word disorder has used the work [sic, word] reaction that is in my opinion oftentimes acceptable. It is somewhat surprising that debate is ongoing regarding nuances of such terminology. I understand that the GP’s diagnosis, as a practicing psychiatrist, is an accepted psychiatric disorder.”
In an Application for an Expedited Assessment (the Application) filed in the Commission on 31 October 2011, Ms Kohlrusch sought weekly compensation from 18 July 2011 to 10 October 2011, plus medical and hospital expenses of $2,000 in respect of an alleged psychological injury she said she received in the course of or arising out of her employment. The claim for medical and hospital expenses was ultimately not pressed.
Employers Mutual’s solicitors filed a Reply to the Application for Expedited Assessment (the Reply) on 8 November 2011. The Reply has attached to it a s 74 notice dated 7 November 2011, denying liability on the grounds that Ms Kohlrusch did not sustain any injury arising out of or in the course of employment with the respondent, employment was not a substantial contributing factor to any injury, or, in the alternative, any injury was brought about by the reasonable actions taken by the respondent in relation to performance appraisal and discipline under s 11A of the Workers Compensation Act 1987.
Also attached to the Reply is a report from Dr White dated 28 September 2011, in which he said that Dr Lawrence’s certificates indicated that she did not understand the DSM-IV classification because “post-traumatic stress reaction with depression” is not a DSM-IV diagnosis. If Dr Lawrence was diagnosing “Post Traumatic Stress Disorder”, that “would be incorrect because Post Traumatic Stress Disorder is an extreme psychiatric reaction to an extreme stressor such as a war experience, rape, or earthquake”.
The Commission allocated the matter to Mr S Paterson, delegate of the Registrar, who held a teleconference on 16 November 2011, when Mr Brennan represented Ms Kohlrusch and Mr Edwards, solicitor, represented Employers Mutual. The worker and a representative from Employers Mutual also participated in the teleconference. Though there is no transcript of the teleconference, the delegate’s notes indicate that the parties agreed the only issue was whether the reasonable excuse of “insufficient medical information” was “current/relevant”. On 29 November 2011, Mr Paterson refused to issue an interim payment direction.
Ms Kohlrusch seeks to appeal under s 352 of the 1998 Act. The respondent has submitted that an appeal cannot be made from a decision of the Registrar or her delegate made under Pt 5 of Ch 7 of the 1998 Act and, in any event, the delegate did not err as alleged.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

JURISDICTION

Submissions

Mr Brennan submitted that Ms Kohlrusch is entitled to appeal under s 352 because the period of weekly compensation in dispute in Pts 6.2 and 6.3 of the Application “follow a successful determination of the dispute referred to the Commission” and “[t]hey do not represent an Application for an Interim Payment Direction”. He said that the delegate correctly determined that the matter was not one where an interim payment direction could be made and his decision therefore does not “fall under Chapter 7, Part 5, Division 2 or 3, but rather under Division 2A by virtue of Section 304(1) and Mr Paterson thus made a determination of the Commission constituted by an Arbitrator”. Thus, the determination is subject to review or appeal (s 296(2)) and the appeal is brought under s 352.

The legislation

All references are to the 1998 Act.
Part 5 of Ch 7 is headed “Expedited Assessment”. Division 1 of Pt 5 states that the Part applies to a dispute referred to the Commission that concerns weekly payments of compensation or medical expenses compensation, or a failure by an insurer, employer or worker to comply with a requirement imposed by or under Ch 3 (which relates to Workplace Injury Management) (s 295(1)). It extends to a dispute that concerns failure to commence provisional weekly payments of compensation as required by Div 1 of Pt 3 (s 295(2)).
Part 3 is headed “Dealing With Claims”. Division 1 of Pt 3 is headed “Special Provisions for Commencement of Weekly Payments After Initial Notification of Injury”. Provisional weekly payments of compensation by an insurer are to commence within seven days after initial notification to the insurer of an injury to a worker, “unless the insurer has a reasonable excuse for not commencing those weekly payments” (s 267(1)). A person does not have a reasonable excuse for not commencing those weekly payments unless the person has an excuse that the WorkCover Guidelines provide is a reasonable excuse (s 267(2)).
If an insurer does not commence weekly payments of compensation because it has a reasonable excuse for not doing so, it must, within seven days after receiving notification of injury, give the worker notice in writing that it has a reasonable excuse for not commencing weekly payments of compensation (s 268).
Returning to Pt 5, the Registrar (or her delegate) may exercise functions under this Part with respect to a dispute on the basis of the documents and information provided to her when the dispute was referred for determination by the Commission (s 296(1)). Except as provided in Pt 5, the exercise of any function under Div 2 or 3 of Pt 5 is not the subject of an appeal or review (s 296(2)).
Division 2 of Pt 5 provides that, when a dispute to which Pt 5 applies concerns weekly payments of compensation or medical expenses compensation, the Registrar can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to as an interim payment direction (s 297(1)). The Registrar is to presume that an interim payment direction for weekly payments of compensation is “warranted” (s 297(3)) unless it appears to the Registrar that:
(a)     the claim concerned has minimal prospects of success, or
(b)     the worker has returned to work, or
(c)     the injury was not reported by the worker as required by s 44 (Early notification of workplace injury), or
(d)     insufficient medical evidence is available concerning the period of incapacity of the worker, or
(e)     circumstances exist that are prescribed by the regulations as circumstances in which it is not to be presumed that such a direction is warranted.
Clause 47 of the Workers Compensation Regulation 2010 (the Regulation) provides that, for the purposes of s 297(3)(e), it is not to be presumed that an interim payment direction for weekly compensation is warranted in circumstances where the insurer has given the worker notice under s 74.
An interim payment direction is not to exceed 12 weeks of weekly compensation (s 298(1)). Such a direction can direct payment of weekly compensation for a period that pre-dates the date of the direction, but that period must not exceed 10 weeks (s 298(2)).
Division 2A of Pt 5 is headed “Disputes Concerning Past Weekly Payments”. This Division was introduced in the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 and commenced operation on 1 November 2006. It applies in respect of a dispute that concerns weekly payments of compensation if the payments are for a period (not exceeding 12 weeks) before the dispute was referred to the Commission and is a “period in respect of which an interim payment direction under the Part may not be made” (s 304A(1)).
The Registrar (or her delegate) may determine a dispute under Div 2A (s 304B(1)) and, for the purposes of determining the dispute, the Registrar has all the functions of the Commission constituted by an Arbitrator under the Workers Compensation Acts and “any determination of the Registrar is taken to be the determination of the Commission constituted by an Arbitrator” (s 304B(2)).

The WorkCover Guidelines

Part 7 of the Guidelines for Claiming Benefits referred to earlier in this decision (see [9] above) provides that an insurer has a reasonable excuse for not commencing provisional liability payments if “there is insufficient medical information”. It adds that an insurer has a reasonable excuse “if it does not have enough medical information to establish there is an injury or that the injury cannot be related to the worker’s employment”.
In addition, the WorkCover Interim Payment Direction Guidelines (the Interim Payment Guidelines) issued in April 2009 are also relevant. The Interim Payment Guidelines state, at cl 2:
“Where a matter is being dealt with as an interim payment direction application, and a dispute notice has not been issued, the insurer will review the claim and advise the outcome of the review to the Registrar and the worker. If a dispute notice has been issued as a result of the review and before a teleconference is conducted, it may then be appropriate, for the same reasons as set out above, for the dispute to be referred to an arbitrator for final resolution of the dispute.
Where a dispute notice has been issued in respect of a weekly payments dispute, the separate ‘small claims’ expedited assessment process is available for past weekly benefits for up to a maximum of 12 weeks of weekly benefits. This process will result in a Certificate of Determination being issued which will finalise the dispute.”

The Interim Payment Guidelines state, at cl 6:
“Presumption in favour of worker
The 1998 Act provides that the Registrar is to presume that an Interim Payment Direction for weekly payments of compensation is to be made unless any one or more of the following is the case:
•     the worker has returned to work
•     the worker did not report the injury to the employer as soon as possible after the injury happened
•     the claim has minimal prospects of success
•     there is not enough medical evidence available concerning the worker's period of incapacity
•     a section 74 notice disputing liability has been served.
Where the presumption does not apply, the Registrar will determine how best to deal with the matter and may refer it to an arbitrator for final resolution of the dispute (refer Clause 2 above).”

Discussion and findings

It is clear from the above summary of the legislation and relevant guidelines that the Registrar’s powers under Div 2 of Pt 5 are limited to the making of an interim payment direction in certain specific circumstances. Those circumstances do not usually extend to the situation where a s 74 notice has issued. In that situation, the usual procedure will be for the matter to be referred to an Arbitrator for final resolution after the filing of an Application to Resolve a Dispute.

However, in a limited number of cases, even where the insurer has issued a s 74 notice, the “Expedited Assessment” process in Pt 5 is available to resolve disputes where the past weekly compensation in dispute is for up to a maximum of 12 weeks compensation. In that event, a delegate acting as an Arbitrator may deal with the matter under Div 2A, but he or she is not required to do so. If the matter were dealt with in that way, the delegate would determine all issues in dispute and issue a Certificate of Determination. Such a result would be a final determination and, if either party were dissatisfied with the delegate’s decision, they could appeal under s 352.
What I have outlined above is what happened in Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13 (Hobden). In an Application for Expedited Assessment filed on 16 June 2009, later amended, the worker claimed weekly compensation for the period from 10 February 2009 to 4 May 2009. The respondent disputed liability under s 11A. The Commission listed the matter before a delegate of the Registrar (acting as an Arbitrator) “under section 304B” (see Hobden at [10]). The delegate heard argument on all issues and made an award in favour of the respondent employer. The delegate’s orders were incorporated in a Certificate of Determination issued by the Commission on 16 July 2009 under s 294. Ms Hobden appealed under s 352.
On the issue of jurisdiction, the President held (at [34]) that:
“in the absence of more express legislative intention to limit the parties’ rights in respect of this Division, the prohibition on an appeal or review of a decision of the Registrar referred in section 296(2) does not extend to decisions made under Division 2A. I am reinforced in that view by the provision of section 304B(4) which expressly provides that, for the avoidance of doubt, the Registrar may under section 371 delegate a function conferred on the Registrar under subsection (1) or (2).”

While it is true that the present Application involved a claim for compensation for only 12 weeks and that the period (18 July 2011 to 10 October 2011) was before the Application was filed in the Commission on 31 October 2011, the parties dealt with the matter as an application for an interim payment direction. Neither party submitted that the matter should have been dealt with as a final determination under Div 2A and the delegate made no orders under that Division. Had an order been made under Div 2A, it would have finally disposed of the matter (and all issues in dispute in the s 74 notice) and the Commission would have issued a Certificate of Determination. Neither of those things happened.
The delegate dealt with the issue argued before him, namely, whether, because there was insufficient medical information, the insurer had a reasonable excuse for not commencing provisional payments. He dealt with that issue as a Div 2 issue (that is, as an interim payment direction issue) and did not exercise his powers as an Arbitrator under Div 2A to finally determine the worker’s entitlement to compensation for the period claimed. Had he dealt with the matter under Div 2A, he would have been justified, given the state of the evidence, in making an award for the respondent on the ground that Ms Kohlrusch had not established that she received an injury. He did not do that because the case was never argued as if it was an application for a final determination under Div 2A.
It follows that, unlike Hobden, as the delegate made no decision under Div 2A, s 296(2) applies and there is no right of appeal to a Presidential member under s 352.
There is a further reason why the appeal cannot proceed. If, contrary to my view, the delegate was acting as an Arbitrator, and made orders under Div 2A, his order dismissing the Application did not finally dispose of the parties’ rights and was interlocutory (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443–444). There is no appeal under s 352 against interlocutory decisions except with leave and 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 (s 352(3A)).
Having regard to the content of the s 74 notice issued on 7 November 2011, it is clear that the resolution of the “reasonable excuse issue” would not resolve the issues in dispute between the parties. It is therefore neither desirable nor necessary for the proper and effective determination of the dispute that leave to appeal be granted. Had it been sought, leave to appeal would have been refused.
If I am wrong on the above issues, it is appropriate to consider the other issues argued on appeal.

DID THE INSURER HAVE A REASONABLE EXCUSE?

Submissions

Mr Brennan submitted that the WorkCover certificate from Dr Lawrence “clearly provides enough medical information to establish that there was an injury and that the injury was employment related”, and that it is not a requirement of the legislation that a psychological injury be categorised in DSM-IV. All that is required is that the injury be a psychological or psychiatric disorder. That was the purpose of obtaining the report from Dr Smith and the reason for the reference to Bowditch in the letter of 27 October 2011. Nowhere in the delegate’s reasons is it stated what the insurer’s reasonable excuse was, or that it actually had one.

Discussion and findings

I do not accept these submissions. The delegate correctly noted the issue to be whether the reasonable excuse of “insufficient medical information” was “current/relevant”. Given the parties submissions, that was a correct characterisation of the issue before him.
After noting that the parties’ submissions concerned the issue of provisional payments of weekly payments of compensation and the validity of the insurer’s “reasonable excuse”, the delegate’s reasons for dismissing the Application were that:
(a)     there appeared to be insufficient medical information available concerning the period of incapacity for which compensation was sought;
(b)     there was no diagnosis from the psychiatrist referred to by Dr Lawrence (see [7] above);
(c)     Dr Smith only commented on the terminology used in Dr Lawrence’s WorkCover certificate, but had not examined Ms Kohlrusch or provided a diagnosis;
(d)     Dr White had provided an “interim opinion” based on a file review and he disagreed with the terminology used and did not agree that Ms Kohlrusch suffered from post-traumatic stress disorder;
(e)     the only WorkCover certificate provided referred to a period of three weeks and two days;
(f)      though the Application was for 12 weeks, the maximum period for which provisional weekly payments of compensation could be made, the dispute concerned an ongoing claim for weekly benefits compensation which exceeded 12 weeks;
(g)     it was arguable that not attending an examination with Dr White constituted a “failure to provide … information to the insurer despite requests from the insurer” in accordance with cl 7.1 of the Guidelines for Claiming Benefits, and,
(h)     the medical evidence provided by Ms Kohlrusch was insufficient and, additionally, did not cover the period for which an order was sought. The dispute no longer concerns provisional weekly payments, but liability for an ongoing weekly benefits claim exceeding 12 weeks. This was not a matter that is appropriately dealt with by way of an application for an interim payment direction.
Though I doubt the correctness of the delegate’s statements at points (f) and (g) at [50] above, the other reasons the delegate gave were open on the evidence and clearly support his conclusion. The delegate’s reasons must be read as a whole. When that is done, it is clear that, though he did not expressly say so, he accepted that the insufficient medical evidence provided by Ms Kohlrusch provided the insurer with a reasonable excuse for not commencing provisional payments.
Initially, the only medical information provided to the insurer was in the certificates from Dr Lawrence. Those certificates provided insufficient “medical information to establish there is an injury” as required by the Guidelines for Claiming Benefits because they provided no findings and a doubtful diagnosis.
While it was not necessary for Dr Lawrence to provide a detailed history in a medical certificate, the issue in this case is not whether Ms Kohlrusch has established an entitlement to compensation, but whether, because it did not have enough medical information, the insurer had a reasonable excuse for not commencing provisional payments. Though the insurer was misguided in believing that a psychiatric injury can only exist if there is a diagnosis that comes within DSM-IV, the delegate’s finding that the medical evidence provided by Ms Kohlrusch was insufficient was open to him. This conclusion follows regardless of the additional medical evidence the parties obtained.
While it is correct that a worker does not have to establish that his or her condition comes within one or more of the descriptions in DSM-IV, which is only “a ‘diagnostic manual’ for clinical use” (Spigelman CJ in State of New South Wales v Seedsman [2000] NSWCA 119 at [114]), where a doctor has used an unknown term (such as that used by Dr Lawrence in her WorkCover certificate of 3 August 2011), an insurer has a reasonable excuse for declining provisional payments.
I am reinforced in this view by the terms of s 11A(7) of the 1987 Act, which provide that, in a claim for weekly payments of compensation in respect of incapacity resulting from a psychological injury, the medical certificate required to accompany the claim “must … use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’”.
The difficulty with Dr Lawrence’s terminology was not overcome by Dr Smith’s report of 4 October 2011. In circumstances where he did not see Ms Kohlrusch, or have a history of the alleged cause of her condition, it is difficult to see how he could conclude that Dr Lawrence’s opinion was consistent with Ms Kohlrusch suffering post-traumatic stress disorder with depression, a recognised psychiatric condition. Dr Smith did not explain the basis on which he was “sure” that Dr Lawrence expressed the “broad symptomatologies associated with a Post-traumatic Stress Disorder”. Other than saying that Ms Kohlrusch was “feeling threatened by demnds [sic] of headmaster”, Dr Lawrence made no mention of the worker’s symptoms or the circumstances in which they arose.
Even if the delegate erred in the manner alleged by Mr Brennan, that does not lead to the result he seeks. The delegate was still entitled to decline to make the order sought because a s 74 notice had been issued disputing liability (see cl 47 of the Regulation). In those circumstances, the Interim Payment Guidelines provide that, where the presumption in favour of an interim payment direction does not apply, the Registrar (or her delegate) “will determine how best to deal with the matter and may refer it to an arbitrator for final resolution of the dispute”. That did not happen in this case because the parties asked the delegate to determine the narrow point of whether the insurer had a reasonable excuse for not commencing provisional liability payments. That does not prevent Ms Kohlrusch pursuing her claim in the usual way by issuing an Application to Resolve a Dispute. Arguably, that should have happened when it became apparent that the period of incapacity in dispute was longer than 12 weeks and that liability to pay compensation was disputed for the reasons set out in the s 74 notice.

OTHER MATTERS

The general conduct of the parties in this matter would not be a model to be followed in the future. It is not necessary that a worker’s claim for compensation for a psychiatric injury be supported by a diagnosis “in line with the DSM-IV guideline”, as Employers Mutual seems to believe. However, in deciding if an insurer is excused from commencing provisional payments because there is “insufficient medical information”, an insurer is entitled to rely on deficiencies in the medical evidence presented. It having done so in this case, it would have been more appropriate for the worker’s solicitor to have obtained and served a report from a treating or qualified specialist addressing the issues raised, rather than engaging in the Spanish saraband that occurred.
One further matter requires comment. The claim in the Application was for 12 weeks of compensation. At the time of the teleconference before the delegate, it was noted that the worker was still off work and the alleged incapacity was continuing. In other words, the actual period of incapacity was longer than 12 weeks. In these circumstances, to deliberately restrict the claim to a shorter period, though not expressly forbidden by the legislation, could be considered to be an abuse of process. In Saldanha v Fujitsu Australia Ltd [2010] WADC 43, an abuse of process was found when a worker arbitrarily split a longer claim into two shorter claims to obtain procedural benefits that applied to shorter claims. Without deciding it, it may be that a similar situation has occurred in Ms Kohlrusch’s case. The practice of deliberately restricting a continuing claim to 12 weeks to obtain a perceived procedural advantage is, at the least, inappropriate and should stop.

CONCLUSION

The appeal is misconceived and the arguments in support of it completely without merit. As the delegate made no order under Div 2A, there is no right to appeal the decision in this matter. Even if I had jurisdiction to consider the appeal, the delegate’s decision was interlocutory and leave to appeal would have been refused. If I am wrong on these matters, the delegate’s decision is not affected by any error of fact, law or discretion.

DECISION

The appeal is misconceived and is dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President
22 March 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE