Millgate v Nationwide News Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Millgate v Nationwide News Pty Ltd [2021] NSWPIC 240
APPLICANT:	Timothy Millgate
RESPONDENT:	Nationwide News Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	12 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Whether the applicant’s right to recover compensation is suspended pursuant to section 119(3) of the 1998 Act; whether referral to Independent Medical Expert (IME) was appropriate pursuant to Part 7.1 of the Guidelines; where factual material raised possibility of section 11A(1) defence; where medical information available from applicant’s general practitioner; whether the referral to IME was reasonable in accordance with Part 7.7 of the Guidelines; University of New South Wales v Lee considered; Held- the referral to IME complied with Part 7.1 of the Guidelines; the applicant’s objection to the referral was not dealt with in accordance with Part 7.7 of the Guidelines; section 119(3) did not operate to suspend the applicant’s right to recover compensation; matter listed for further teleconference to deal with other notified disputes.
DETERMINATIONS MADE:	The Commission determines: 1. The referral to an Independent Medical Examination (IME) was appropriate and consistent with Part 7.1 of the Workers Compensation Guidelines (the Guidelines). 2. The insurer did not deal with the applicant’s objection to the IME in the manner required by Part 7.7 of the Guidelines. 3. The applicant has not been required to submit himself for examination by a medical practitioner in accordance with the Guidelines as required by s 119(4) of the Workplace Injury Management and Workers Compensation Act 1998. 4. The provisions in s 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 do not apply. The Commission directs: 1. The matter be listed for further teleconference.

STATEMENT OF REASONS

BACKGROUND

Mr Timothy Millgate (the applicant) claims to have suffered a psychological injury in the course of his employment with Nationwide News Pty Ltd (the respondent) between 1 July 2020 and 19 November 2020.

The applicant claims that his injury was due to a change in resource structure and increased workload and work pressure caused by the deterioration of the advertising market due to COVID-19. The applicant alleges that his condition was exacerbated by unreasonable management by his superiors and a failure by the respondent to properly respond to and accommodate his work-related psychological injury.

A claim for compensation in respect of the alleged injury was made on 15 December 2020.

On 4 January 2021, the insurer sent an email to the applicant notifying him of its intention to arrange an Independent Medical Examination (IME) with a psychiatrist. The applicant was offered a choice of appointments with three alternative examiners.

There then followed a series of email exchanges between the applicant’s legal representative and the insurer as to whether the applicant had been required to submit himself for examination in accordance with the Workers Compensation Guidelines (the Guidelines) for the purposes of s 119(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

On 27 January 2021, the insurer sent a letter appointing an IME with A/Prof Robert Kaplan, psychiatrist, on 2 February 2021. On 27 January 2021, the applicant’s legal representative notified his objection to the proposed IME on the basis that the insurer had failed to establish that it had complied with the Guidelines. The applicant did not attend the scheduled IME appointment.

On 10 February 2021, the insurer issued a notice pursuant to s 78 of the 1998 Act disputing the applicant’s entitlement to compensation in reliance upon ss 4, 11A(1), 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). In addition, it was noted that the applicant’s failure to attend the IME appointment was in contravention of s 119 of the 1998 Act. As such, the applicant’s right to recover any potential compensation under the 1987 Act with respect to the alleged injury was suspended until the examination had taken place.

The present proceedings were commenced by an Application to Resolve a Dispute lodged on 14 April 2021 seeking ongoing weekly compensation.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 24 June 2021. The applicant was represented by Mr Craig Tanner of counsel, instructed by Mr Greg Masselos. The respondent was represented by Mr Lachlan Robison of counsel, instructed by Mr Mark van der Hout. Representatives from the insurer were also present.

During the conciliation conference it was agreed that the Commission would determine as a preliminary matter the dispute arising pursuant to s 119 of the 1998 Act. The future course of the proceedings would depend on the outcome of that determination.

Leave was granted, without objection, to the applicant to amend the Application to Resolve a Dispute to claim ongoing weekly compensation from 3 March 2021 and to include a general claim for incurred s 60 expenses.

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.

ISSUES FOR DETERMINATION

The following issue is presently in dispute:

(a) whether the applicant’s right to recover compensation is suspended pursuant to
s 119(3) of the 1998 Act.

EVIDENCE

Documentary Evidence

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

(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 4 June 2021; and

(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 21 June 2021.

Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement dated 13 April 2021.
The applicant was employed as a Network Partnership Manager responsible for developing brand solutions/campaigns for advertisers. The applicant expressed the view that he was performing his work to an acceptable level and was a valued member of staff.
On 11 June 2020, the applicant was informed that the portfolio he was responsible for would change from news.com.au/MMH to The Australian effective 1 July 2020. The applicant was required to report to Ms Danica Robinson, who in turn reported to Ms Charlotte Sos.
The applicant stated that The Australian had lost a number of key clients due to COVID-19 and as a result, revenue targets were much harder to achieve. This resulted in significantly increased work pressure for the applicant. The applicant also had reduced support and assistance in his new portfolio. The applicant said:
“From July 2020, these additional work duties together with the constant pressure of being required to reach revenue targets, while working on a new portfolio made working extraordinarily difficult. As I was working without adequate support or assistance, I began to suffer from symptoms of stress and anxiety, which commenced in about mid-July 2020.”
The applicant denied that there were any significant issues with his work performance but conceded that the work-related stress and anxiety he had been experiencing since July 2020 did impact on his ability to carry out his work duties.
On 26 October 2020, the applicant consulted his general practitioner via telehealth consult and after a face to face consultation on 27 October 2020 was put on a mental health plan and prescribed anti-anxiety medication and melatonin.
On 2 November 2020, the applicant had a meeting with Ms Robinson in which she expressed concern about the applicant and said she had heard from other staff that he was suicidal. The applicant denied this but said:
“I told her that I was experiencing anxiety and stress related to pressures at work, in particular pressure to generate briefs and to work on client relationships with the sales team that were not getting results due to the Covid-19 environment and the reduced headcount caused by recent redundancies.”
Ms Robinson arranged for the applicant to speak with a psychologist from the Employee Assistance Program (EAP) the same day.
On 11 November 2020, the applicant was advised that he would be having a formal performance meeting with HR the following day. The meeting went ahead on 12 November 2020 and the applicant was placed on a Performance Improvement Program (PIP). A PIP check-in meeting took place with Ms Sos on 18 November 2020 in which the applicant spoke about his work-related anxiety.
On 19 November 2020, the applicant consulted his general practitioner and was certified unfit for work.
The applicant prepared a further written statement on 21 June 2021 in which he responded to witness statements prepared for the respondent on 26 May 2021.

Medical evidence

The applicant relies on clinical notes, certificates of capacity, responses to questionnaires sent by the insurer and a report from his general practitioner, Dr Robert Burton. Dr Burton diagnosed an adjustment disorder “secondary to a change in work role with a new manager.”
The applicant also relies on clinical notes from the respondent’s EAP provider and a traditional Chinese medicine and acupuncture practitioner, Ms Olivia Shurdova.

Respondent’s evidence

The respondent relies on two reports prepared by The Procare Group. The first, dated 12 January 2021, is described as an interim report and details efforts made to contact the applicant. Correspondence from the applicant’s legal representative indicated that the applicant was unwilling to submit himself for interview but would respond to any request for particulars. A response to a request for particulars dated 8 January 2021 was attached.
A second report, dated 27 January 2021, attached statements from Alex Noakes, Charlotte Sos and Danica Robinson. That evidence is summarised in the report as follows:
“The evidence from the Insured is the Claimant was undergoing informal performance counselling since 2 September 2020, that support was provided, and no improvement was being made. It is noted the Claimant reported suicidal thoughts to his colleagues and as a result, Robinson arranged a 'check-in' meeting to find out more, on 2 November 2020.
Robinson provides at no stage during this meeting did the Claimant raise any work-related issues but he was referred to EAP.
Following this meeting, Robinson believed the Claimant was ok and so the Insured proceeded with formal performance management. This was not disciplinary in nature and was aimed to improve performance.
A meeting was held on 12 November 2020 with Robinson and Noakes and the Claimant was issued with a for performance improvement plan. The Claimant mentioned on this occasion that he was suffering with anxiety issues and he was receiving treatment. According to Robinson and Noakes the Claimant did not report having any work-related issues or raise that his work was causing a deterioration of his mental health.
There was a catch-up meeting for the PIP on 18 November 2020 and Sos was present due to Robinson being on leave. Sos says the Claimant was teary during this meeting and recalls he raised not being able to meet the targets set in the PIP.
The Claimant had leave arranged starting the next day, 19 November 2020. On that date, he sent an email to Sos thanking her for her support the previous day. He went on to say he had reported his workplace issues to Robinson on 2 November 2020 and was surprised he was issued with a PIP a week later. The evidence of the Insured witnesses is this was the first mention of work-related issues.
The lnsured's position is the Claimant was supported to "nth degree". The expectation placed on him, in regards to his role, was in line with all team members in the same role and despite the extensive supports in terms of consultation, coaching and feedback, he failed to improve. It is further noted that since his absence, team members have picked up his workload and achieved the targets set.”

Supplementary statements from the three witnesses dated 26 May 2021 were attached to the respondent’s Application to Admit Late Documents.

Correspondence with regard to the IME referral

The claim for compensation was made on 15 December 2020.
On 21 December 2020, Mr Ta from the insurer emailed the applicant referring to a conversation the previous Friday. Mr Ta set out the next courses of action as had been requested. Amongst other things, the email stated:
“You will be required to attend a independent medical exmainition where a psychaitrist see you to provide us with a report, we will provide you with these details once arranged.”
On 4 January 2021, Ms Bolante from the insurer emailed the applicant providing him with three options for an IME. The applicant was requested to reply with his choice on or before 7 January 2021. The options provided included an appointment with A/Prof Robert Kaplan on 2 February 2021.
On the same day, the applicant’s legal representative, Mr Masselos emailed Ms Bolante stating:
“I refer you to the ‘Mandatory Obligations for Employers/Insurers’ under SIRA's Guidelines on Independent Medical Examinations and Reports. Kindly state the basis upon which you say you are entitled to an independent medical examination under the Guidelines, noting that it appears the mandatory obligations have not been satisfied in this case at this time.”
Ms Bolante responded:
“An insurer or employer can refer a claimant for an independent medical examination when:
· more information is required than what has been provided by your doctor to date, or
· an assessment of permanent impairment is required.
The appointment has been made because the information received from Dr Robert Burton is unavailable and we need more information about your client's medical diagnosis, symptoms, causation, treatment plan, capacity to work and prognosis. Further information and clinical notes were requested on 18/12/2020 and we have not received a reply.”
Mr Masselos replied indicating that Ms Bolante’s email did not accurately reflect the Guidelines. The following information and documents were requested:
“1.     When did you ask the treating doctor for more information about my client's "medical diagnosis, symptoms, causation, treatment plan, capacity to work and prognosis"? Please provide a copy of your request.
2.      Do you say that information from the treating medical practitioner is inadequate, unavailable, or inconsistent?
3.      When was the request for the information made? Please provide a copy of the request.
4.      If you say that the information is inadequate or inconsistent, how is it inadequate or inconsistent?
5.      If you say the evidence is unavailable, what is the basis of this contention?
6.      What efforts have you made to resolve the issues related to the problem directly with the treating practitioner? Kindly provide copies of all such communications.
7.      Why have you been unable to resolve the issues directly with the doctor?
8.      Please provide all communications received from the doctor in response to your communications.
9.      You say that you have requested clinical records from the doctor. How can an IME substitute for a GP's clinical records?”
On 5 January 2021, Ms Bolante responded as follows:
“1.     When did you ask the treating doctor for more information about my client's "medical diagnosis, symptoms, causation, treatment plan, capacity to work and prognosis"? Please provide a copy of your request.
- Please see attached request for further medical information sent to Dr Burton last18/12/2020 by email ([email protected])
2.      Do you say that information from the treating medical practitioner is inadequate, unavailable, or inconsistent?
- Information from the treating doctor is unavailable
3.      When was the request for the information made? Please provide a copy of the request.
- Please see response to Ql
4.      If you say that the information is inadequate or inconsistent, how is it inadequate or inconsistent?
- We have not received a response from Dr Burton to date hence the medical information is unavailable.
5.      If you say the evidence is unavailable, what is the basis of this contention?
- Please see response to Q4
6.      What efforts have you made to resolve the issues related to the problem directly with the treating practitioner? Kindly provide copies of all such communications.
- Please see response to Ql
7.      Why have you been unable to resolve the issues directly with the doctor?
- Unfortunately, we have not yet received a response from your client's treating doctor.
8.      Please provide all communications received from the doctor in response to your communications.
- Please see response to Q7
9.      You say that you have requested clinical records from the doctor. How can an IME substitute for a GP's clinical records?
- We have requested clinical notes to confirm when your client first sought medical attention in relation to the injury. The date of injury on the Certificates of Capacity is noted as17/08/2020, first seen at the practice for the injury on 26/10/2020 and the initial certificate was signed by Dr Burton on 10/12/2020. The initial certificate was also backdated noting that Mr Millgate was unfit to work from 19/11/2020 to 17/12/2020.
The IME will not substitute clinical records but it may assist us in understanding Mr Millgate's history during the consultation.”
In an email of the same date, Mr Masselos asserted that the insurer was not entitled to an IME as Dr Burton had not been given a reasonable opportunity to respond to the request, given the Christmas period. No attempt to resolve the issue with the doctor had been made. There was no contact with the doctor other than the one request on 18 December 2020.
On 6 January 2021, Ms Bolante indicated that Dr Burton’s practice had been followed up. Another follow-up would be done on 11 January 2021 and if the information had not been received by then the insurer would proceed with the IME booking.
On 11 January 2021, Mr Ta wrote to the applicant indicating that a questionnaire had been returned by Dr Burton but further information was required in order to determine liability. The applicant was offered the same three options for IME and was requested make a selection by close of business on 14 January 2021.
Mr Masselos responded to this email requesting a copy of the questionnaire. The insurer was asked to explain how the Guidelines had been satisfied and to provide evidence in support. Mr Ta replied, stating:
“We seek the input of an independent specialist/psychiatrist to provide a report to help explain the psychological injury.”
In a further email of the same date, Mr Masselos forwarded an extract from Part 7.1 of the Guidelines and indicated that if the Guidelines were not complied with he would ask SIRA to intervene. Mr Ta responded:
“A GP cannot provide us with specialised insight therefore the information from the treating medical practitioner(s) is inadequate.”
Mr Masselos responded to this email stating that the Guidelines had not been satisfied and the applicant was not required to submit to an IME and would not do so until the Guidelines had been satisfied. Mr Masselos stated:
“1.     You have provided no evidence to establish the proposition that "specialised insight" (whatever that means) is required in what is a very straightforward claim.
2.     In any event, "specialised insight" is not one of the valid criteria for an IME referral under the Guidelines and so your desire for such "insight" does not entitle you to an IME.
3.     You have provided no evidence to establish the proposition that the GP's response is inadequate. Indeed, you have not even provided his response.”

Mr Ta responded:
“The NTD are not qualified to provide a DSM-V diagnosis so we require an IME to provide a diagnosis in accordance with DSM-V and causation in terms of the whole or predominant cause.
The NTD diagnosis and causation statement is inconsistent with other medical and factual evidence contained on the claim. "Changes in work circumstances" brings s 11A into consideration as a defence but is subject to independent medical and factual investigations.”
Mr Masselos responded:
“If you contend that you are entitled to an IME, then send a email setting out all the reasons why, stating how the Guidelines have been complied with, and attaching all supporting evidence.
It is plainly wrong to state that a GP cannot provide a DSM-V diagnosis or an opinion as to causation.
It is of concern that you keep coming up with new (but flawed) purported reasons for an IME, and this undermines the credibility of your assertions. I am concerned that you are seeking to avoid your duty to comply with the Guidelines.
You have provided only bald assertions unsupported by detail or evidence. Your desire to rely on section 11A is not one of the criteria entitling you to an IME.”
On 12 January 2021, the insurer sent the applicant a letter notifying him that an independent medical opinion was required. The letter provided information in a standard form as to what was required and set out the three options for IME appointment previously offered.
Mr Masselos wrote to the insurer on the same day stating that compliance with the mandatory requirements of the Guidelines had not been demonstrated. He advised that the applicant would not submit to an IME unless and until it was established that the Guidelines had been satisfied.
On 15 January 2021, the respondent’s legal representative, Mr van der Hout, emailed
Mr Masselos attaching correspondence sent to Dr Burton on 18 December 2020 and indicating that a response had not been received. It was stated that the information from the treating medical practitioner was inadequate and insurer was unable to resolve the issues with the doctor noting that he had not returned questionnaire. The applicant was asked to select one of the IME options previously notified.
Mr Masselos brought to Mr van der Hout’s attention that it had been confirmed on 11 January 2021 that the completed questionnaire had been received. Mr van der Hout replied indicating that the previous advice was incorrect. On 18 January 2021, the completed questionnaire was forwarded to the applicant. Mr van der Hout stated that in light of the answers from
Dr Burton clarification of a number of his answers would be sought.
On 22 January 2021, responses to a second questionnaire from Dr Burton were forwarded to the applicant. Bearing in mind the comments contained within the questionnaire the applicant was advised that an IME appointment would be arranged. The applicant was again asked to elect between the three IME options previously notified.
Mr Masselos responded on the same date stating that Dr Burton gave complete responses to the request for information. The evidence provided did not support the contention that the insurer was entitled to an IME. The insurer was asked to provide the following information:
“1.     On what basis do you contend that your client is entitled to an IME under clause 7.1?
2.      Do you say that information from the treating medical practitioner is inadequate, unavailable, or inconsistent?
3.      What is the information that you say is inadequate, unavailable, or inconsistent?
4.      When was the request for the information made? Please provide a copy of the request and all other correspondence between you/your client and the NTD.
5.      If you say that the information is inadequate or inconsistent, how is it inadequate or inconsistent?
6.      If you say the evidence is unavailable, what is the basis of this contention?
7.      What efforts have you made to resolve the issues related to the problem directly with the treating practitioner? Kindly provide copies of all such communications.
8.      Why have you been unable to resolve the issues directly with the doctor?
9.      Please provide all communications received from the doctor in response to your communications.”
Mr van der Hout responded to this request for information as follows:
“With respect to your questions below, it is noted that Dr Burton is his original response when addressing the cause of your client's alleged injury, stated it was " mainly work related" (emphasis added). Clarification was sought as to whether there were any factors such as pre-existing conditions or lifestyle considerations outside the workplace that had contributed to this condition. He responded with "No". Arguably this response could be inconsistent with the original response.
Importantly Dr Burton stated that the "main injury was the result of the above. Performance appraisal may have exacerbated this". Information as to what was the "whole and predominate” cause for the worker's injury is inadequate and inconsistent.
We have now sent two questionnaires to resolve the matters with Dr Burton (which you have been provided). He has indicated a number of factors which were potentially causative of your client's alleged injury. At this stage, Dr Burton confirmed that performance appraisal was certainly a contributor to your client's presentation.
In our view, the wording conferred by the Guidelines indicates the power to refer for an independent medical examination may be exercised in a discretionary manner in various circumstances: "Referral for an independent medical examination is appropriate when...". The interpretation of the wording does not impose a strict caveat. For example, it is not mandated that a referral for an independent medical examination "shall” only or "must” only be performed when...". lndeed, the Guidelines go on to employ strict wording in various other sections (e.g. "subsequent medical examinations must be with the same medical practitioner unless...").
Consistent with the comments above, we believe the decision to arrange an IME is appropriate.”
On 27 January 2021, the insurer wrote to the applicant advising that an appointment for an IME had been arranged with A/Prof Kaplan on 2 February 2021. The letter contained information in standard form about the examination and a fact sheet titled “Independent Medical Examinations: information for workers” was attached.
Mr Masselos wrote to Mr van der Hout on 27 January 2021 stating:
“While you have not provided us with all the information we requested, based on the limited information you have provided, we disagree that compliance with the Guidelines is optional, and we consider that you have not established that the requirements of the Guidelines have been met at this time. As a consequence, the worker considers the proposed IME to be unreasonable because your client has not complied with the Guidelines and is not entitled to an IME under the Guidelines, and as such the proposed IME is unlawful.”
A further letter was forwarded to the insurer on 28 January 2021 stating:
“The worker's position remains as set out in our letter of 27 January 2021. He does not consider the appointment to be reasonable for the reasons stated therein and he objects to the examination on this basis. For these reasons, he will not be attending the appointment on 2 February 2021 and this should be cancelled. Should you fail to cancel the appointment, we put you on notice that our client will not pay any non-attendance fee that may be charged by the doctor.”
A dispute notice pursuant to s 78 of the 1998 Act was sent to the applicant on 10 February 2021. The notice referred to the questionnaires forwarded to Dr Burton and stated:
“In light of the conflicting observations made by Dr Burton and the surrounding factual circumstances, BBW Lawyers attempted to arrange an independent medical examination (IME) appointment with a psychiatrist to determine whether you suffered from a psychological injury and if there was a causal connection to your employment. Your solicitor was invited to select from 3 IME appointments on 22 January 2020.
As we understand BBW Lawyers were forwarded correspondence from your solicitor dated 27 January 2021. In that letter it was considered that the requirements of the relevant Guidelines had been met. Accordingly, you considered the proposed IME to be unreasonable and unlawful. This is despite the conflicting observations in the questionnaire(s) sent to the NTD and subsequent uncertainty.
In order to progress the matter and ensure your claim was determined within a timely manner and on the basis of all relevant evidence (including forensic expert evidence), an appointment was arranged with Assoc Prof Robert Kaplan on 2 February 2020.
Further correspondence was forwarded to EML/icare on 28 January 2021. It was emphasised that you would not attend the appointment on 2 February 2021. So as to not cause any further delay, EML did not cancel the appointment. Unfortunately you did not attend the examination with Assoc Prof Robert Kaplan.
We have attached the correspondence between your solicitors and BBW Lawyers.
ln light of the attempts to resolve a number of issues directly with the your NTD, we believe the failure to attend the IME appointment (on the advice of your solicitor) was in direct contravention to s.119 of the1998 Act.
You refused to submit yourself and obstructed the scheduled examination. As such, your right to recover any potential compensation under the1987 Act with respect to your alleged injury is suspended until the examination has taken place. In that regard, we are prepared to revisit this decision if you agree to attend an IME examination.”

Respondent’s submissions

Mr Robison made submissions on the operation of s 119 of the 1998 Act, which he described as a rights-based provision, and additionally made an application for a stay of the proceedings. Mr Robison submitted that the proceedings should be stopped or stayed temporarily as the respondent was unable to meet the case. Mr Robison submitted that both matters arose from the same underlying fact but were questions to be determined according to separate legal principles. Mr Robison described a stay of proceedings as a common law procedural fairness obligation not abrogated by statute.
Mr Robison noted that the applicant pleaded a multifactorial injury. In the Application to Resolve a Dispute the applicant described an injury due to a change in resource structure, increased workload and work pressure, associated stress and difficulty reaching targets. Separately, the condition was said to be exacerbated by unreasonable management action.
Mr Robison submitted that a number of causative factors were alleged and that a potential defence pursuant to s 11A(1) of the 1987 Act arose. The respondent bore the onus of establishing a defence pursuant to s 11A(1). That involved a medical question requiring a disentanglement of the causative factors to determine whether any of them was the whole or predominant cause of injury. This was a matter on which a medical opinion from a psychiatrist was required.
Mr Robison referred to the provisions of s 119 and submitted that subsection (1) was satisfied. The disentitling provision in section 119(3) was noted. The operation of the section was said to be varied by the overlay of the Guidelines pursuant to subsection (4).
Mr Robison submitted that the application of guidelines (albeit different to those presently under consideration) was considered in Elsworthy v Forgacs Engineering Pty Ltd[1]. It was held that the guidelines applicable in the circumstances of that case were in effect delegated legislation and were to be interpreted as legislation. The Guidelines which applied to the present case had the same effect.
[1] [2018] NSWSC 1638.
Mr Robison distinguished the facts of the present case from those in the matter of University of New South Wales v Lee[2] (Lee). Mr Robison noted that in Lee the respondent had asked for general practitioner’s notes. The general practitioner sent an invoice which the respondent declined to pay and requested an IME instead. The insurer was found to have failed to discharge its obligations under the Guidelines in requiring an IME. Mr Robison noted that Lee was not a s 11A(1) case and did not involve any questions in respect of which the insurer bore an onus. This was said to be relevant to the question of whether the material from the nominated treating doctor was adequate.
[2] [2021] NSWPICPD 4.
Mr Robison submitted that there were a number of authorities on what an insurer must demonstrate in order to establish a defence under s 11A(1). Having regard to Hamad v Q Catering Limited[3], Mr Robison submitted that there would be few cases in which a respondent would be able to discharge the relevant onus in the absence of an expert report from a psychiatrist.
[3] [2017] NSWWCCPD 6.
Mr Robison noted that under Part 7 of the Guidelines a referral for an IME was appropriate when information available from the treating medical practitioners was inadequate, unavailable or inconsistent, and the insurer was unable to resolve the problem directly with the practitioners. In the circumstances of this case, information from a general practitioner was never going to be adequate to resolve the s 11A(1) issue.
So far as the Guidelines required evidence of contact or multiple attempts to contact to try and resolve these issues with the nominated treating practitioner, Mr Robison said there was evidence of such before the Commission. Mr Robison submitted that there was no obligation on the insurer to make multiple attempts.
The appropriateness of a referral was dealt with in Part 7.1. Relevantly to the present case, the information required related the contribution of work incidents, duties and/or practices to the injury. The relative contribution of management action was the central issue requiring determination.
Mr Robison submitted that the provisions in s 119 were consistent with common law rules of procedural fairness, which required that an employer have an opportunity to investigate and defend claims as appropriate. Section 119 created right on the part of the employer. In the present case the employer’s rights were transgressed by the conduct of the applicant.
Referring to the correspondence in evidence, Mr Robison submitted that the insurer emailed a questionnaire to the applicant’s general practitioner, Dr Burton, which he completed on 7 January 2021. In responding to the insurer’s questions, Dr Burton diagnosed an adjustment disorder with anxiety secondary to a change in the applicant’s work role and a new manager. The injury was said to be “mainly work-related”. Mr Robison described this as an inadequate response for the purposes of Part 7.1 of the Guidelines in circumstances where the applicant alleged an injury due to multiple events in the workplace. The hierarchy of causative events remained unclear.
Mr Robison noted that in a further questionnaire completed on 20 January 2021, Dr Burton was asked whether the applicant’s injury was wholly or predominantly caused by actions of management with respect to performance appraisal and/or discipline. Dr Burton’s response made reference to “the main injury” and opined that performance appraisal may have exacerbated this. Mr Robison submitted that this response suggested there may be multiple injuries and required further clarification. No reasoning was provided.
The respondent therefore engaged with the doctor as required by the Guidelines.
Although Dr Burton had subsequently prepared a report for the applicant’s solicitor dated 18 March 2021, Mr Robison submitted that this did not cure the inadequacy of the information previously provided.
Dr Burton may have been qualified as a general practitioner to give a DSM-V diagnosis, however, the complicated question of causation in this case required a suitably qualified specialist opinion.
Mr Robison noted that the s 78 notice recorded the engagement with Dr Burton and set out the necessary procedural information. Mr Robison also referred to the correspondence between the parties set out above.
In the circumstances of this case, where the insurer bore the onus of establishing a defence under s 11A(1), a specialist opinion was necessary. The absence of a specialist opinion left the insurer in an unsatisfactory situation. Although the applicant’s solicitor had provided an opinion as to what the Guidelines required, that was a question ultimately for the Commission to determine.

Applicant’s submissions

Mr Tanner referred to the mandatory requirements of s 119(4) and submitted that the applicant must not be required to submit himself for examination otherwise than in accordance with the Guidelines. The relevant question was whether the insurer’s request to attend an IME complied with those Guidelines. Mr Tanner submitted that it was quite clear that the respondent had failed to comply with its obligations in that regard.
Mr Tanner referred to the obligations set out in Part 7.1 of the Guidelines. Mr Tanner submitted that there was no evidence of any attempts to resolve any problem with the information provided by Dr Burton prior to the first indication that a referral to IME would be required.
The insurer’s initial stance was that the information was unavailable. Having regard to the correspondence in evidence that was plainly incorrect.

Although it was later suggested that the information was inadequate, no explanation was provided as to the respects in which the information was inadequate or the attempts undertaken to remedy the situation.
In responding to the insurer’s questions, Dr Burton had provided a DSM-V diagnosis.
Dr Burton dealt with the question of causation by saying that the applicant’s condition was secondary to a change in work role with a new manager. Mr Tanner submitted that this did not constitute a transfer and the s 78 notice did not raise a defence in reliance on management actions with respect to transfer. The change in the applicant’s work role was not relevant to any defence under s 11A(1). Each of the relevant categories of information listed in Part 7.1 of the Guidelines was addressed by the information provided by Dr Burton.

In accordance with Part 7.1, the reasons for the referral to an IME were to be documented on the claim file. There was no explicit record of this other than a handful of one-liners in the correspondence from the insurer.

Mr Tanner submitted that the question of causation was simple and a simple and direct answer to that question had been provided by Dr Burton. If the insurer was not satisfied with that answer it was incumbent upon the insurer to write to the doctor again to address the inadequacy.

A further set of questions was put to the doctor. If those responses were less than fulsome, the appropriate remedy was to ask further questions. Mr Tanner noted that Part 7.1 required that contact to resolve any issues be documented. Mr Tanner submitted that there was no evidence of attempts to resolve the issues on which the respondent now relied in order to excuse its non-compliance with the Guidelines.

Mr Tanner noted that Dr Burton responded to a second questionnaire on 20 January 2021, prior to the issue of the s 78 notice. Dr Burton was asked whether management action was the whole or predominant cause of the injury. Dr Burton indicated that the main injury was not caused by any s 11A actions. Performance appraisal was only a superficial aggravating factor to a condition which was already in place. If the insurer believed Dr Burton’s reasoning was not disclosed, it was open to the insurer to continue to communicate with the doctor to enquire as to his reasoning.
The applicant described a change in role and being given additional duties as causative of his injury. The applicant was under undue pressure due to unrealistic expectations.
Mr Tanner submitted this constituted a classic case of work-related stress. The main contributing factor to the injury had been particularised by the applicant and confirmed by his doctor and Ms Shurdova. None of the causes identified were relevant to s 11A(1).

Mr Tanner went through the correspondence between the parties. The communications from the insurer were said to reveal an attitude of entitlement to an IME regardless of the information provided by the doctor. The first assertion that an IME would be required was made prior to any steps being taken to contact Dr Burton. It was apparent that the insurer had no regard to its obligations under Guidelines.
The particular matters on which the respondent now sought to rely were never articulated by the insurer. The respondent now sought to rely on the inadequacy of Dr Burton’s information. There was nothing inconsistent in his answers nor was it unavailable.
The Guidelines made no provision for referral to a specialist by way of right. That course was only available if the information from the treating medical practitioner was inadequate, unavailable or inconsistent and an attempt had been made to resolve the issue with the doctor. In the present case, the insurer was provided with sufficient information to determine liability.

Addressing the respondent’s submission that the employer was at a disadvantage as it bore the onus of proof, Mr Tanner submitted that one would expect that the Guidelines would record such an exception if that had been intended. Nothing in the Guidelines referred to onus or exemptions in a s 11A case.

Dr Burton had provided a response to the insurer’s question with regard to matters set out in s 11A. It could not be said that his response was inadequate or incomplete. The insurer was expected to make further enquiries if it was.

Mr Tanner said the respondent had correctly conceded that the Guidelines had the effect of law. The insurer was expected to comply with them. The referral to an IME was inappropriate where evidence of the applicant’s condition was available and available from a primary source such as a general practitioner.

The material provided by Dr Burton was not inadequate. If it was, the respondent should have documented the respects in which it was considered inadequate. The Guidelines were clear. There could be no complaint of procedural unfairness when the insurer had not taken the steps incumbent upon it.

Mr Tanner also referred to the requirements of Part 7.7 of the Guidelines in dealing with the applicant’s objection to the IME referral. It was submitted that no communications in response to Mr Masselos’ letter of 27 January 2021 had been made in compliance with paragraphs four and five of Part 7.7.

Respondent’s submissions in reply

Mr Robison submitted that the proposition that the Guidelines had legal force operated in the respondent’s favour and indicated that they should be interpreted as legislation.
Mr Robison noted that a second questionnaire had been sent to Dr Burton and queried how many times the insurer must be required to contact the doctor to clarify the information provided. The applicant read into the text of the Guidelines a requirement that the insurer return to the doctor again and again. The fact that it was open to the insurer to send a third questionnaire did not deprive it of the power to require an IME. A single attempt was sufficient.
Whether specialist opinion was required would depend on the circumstances of the case.
Mr Robison noted the different expertise of general practitioner and a specialist psychiatrist. Perhaps if the applicant had provided an opinion from a psychiatrist an IME would not be justified. However, only evidence from a general practitioner had been provided by the applicant. This was one of a number of considerations which formed part of the factual matrix in determining whether an IME was reasonable and appropriate.
Mr Robison submitted that the Guidelines should be interpreted in the context of the
1998 Act as a whole. Section 274 of the 1998 Act required the claim to be admitted or denied within 21 days or 12 weeks if provisional payments are made. The insurer was obliged to determine liability within a relatively short period. This was a relevant consideration when having regard to the requirements of the Guidelines.
Mr Robison submitted that leaving aside the confusion with regard to whether information from Dr Burton was “available” the correspondence from the insurer demonstrated that it understood what the Guidelines required.
With regard to the insurer’s compliance with Part 7.7, Mr Robison referred to the fact sheet and standard form advice about IME appointments provided to the applicant with the formal notification dated 27 January 2021. That information included the contact details of the Workers Compensation Independent Review Office (WIRO) and in the context of the claim a complaint had in fact been made to WIRO. To the extent that such advice did not satisfy the obligations in Part 7.7 Mr Robison referred to the information provided in the s 78 notice. Mr Robison referred also to the volume of correspondence between the parties dealing with the applicant’s objections. Mr Robison comments on the constraints the insurer was operating under given that a complaint had already been made to WIRO.

FINDINGS AND REASONS

Section 119 of the 1998 Act relevantly provides:
“(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 Guidelines referred to in s 119 are issued pursuant to s 376 of the 1998 Act. Those in force at all relevant times in the circumstances of this case were the Workers Compensation Guidelines published by the State Insurance Regulatory Authority in April 2020. Part 7 of the Guidelines deals with IMEs and sets out mandatory obligations for insurers when requiring a worker to attend an IME.
Part 7.1 deals with the reasons for a referral and states:
“Referral for an IME is appropriate when information from the treating medical
practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to
resolve the problem directly with the practitioners.
Evidence of contact (or multiple attempts to contact) to try to resolve these issues with
the nominated treating practitioner must be documented on the claim file.
An IME is appropriate where the information required relates to:
•       diagnosis of an injury reported by the worker
•       determining the contribution of work incidents, duties and/or practices to the injury
•       whether the need for treatment results from the worker’s injury and is reasonably
necessary
•       recommendations and/or need for treatment
•       capacity for pre-injury duties and hours
•       the likelihood of and timeframe for recovery
•       capacity for other work/duties (descriptions of such duties are to be provided to the independent medical examiner)
•       what past and/or ongoing incapacity results from the injury
•       physical capabilities and any activities that must be avoided
The reason for the referral must be documented on the claim file.”
Part 7.7 of the Guidelines additionally provides:
“The insurer must consider whether the requirement to attend an IME is reasonable in the circumstances.
This includes the requirement to consider amendments to existing laws and public health orders made in response to COVID-19 (Coronavirus).
If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.
The insurer must consider this objection and advise the worker of their decision following this consideration. This advice must include contact information for the Workers Compensation Independent Review Office (WIRO). Benefits are not to be affected prior to adequate written notice being received by the worker.
Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinistated.”
In University of New South Wales v Lee[4] Snell DP said at [65]:
“The University’s submission that the Guidelines represent “a non-binding indication of policy” is inconsistent with what was said by Basten JA in Kurnell Passenger at [97] (see [61] above) and at [104]. It is also inconsistent with the structure of s 119 and its interrelationship with the Guidelines. Consistent with the above, the Guidelines control the manner of operation of s 119. I accept the respondent’s submission that the Guidelines “regulate the circumstances in which a worker may be required to submit to a medical examination at the direction of an employer”.
It follows that I accept the respondent’s submission that the Arbitrator did not err in relying on the Guidelines, as he was bound to do.”
[4] [2021] NSWPICPD 4.
The parties in these proceedings have appropriately agreed that the Guidelines were binding on the insurer when requiring the applicant to submit himself for examination by a medical practitioner.
The primary dispute between the parties is whether the insurer complied with those binding obligations. If the insurer did not so comply, the applicant will not have been required to submit himself for examination under s 119 such that s 119(3) would not operate to suspend his right to recover compensation.

The first question to be determined is whether the information from the applicant’s medical practitioner was inadequate, unavailable or inconsistent.
The primary submission by the respondent at arbitration that the information provided by the applicant’s treating medical practitioner, Dr Burton was inadequate. In particular, it was noted that the applicant alleged a multifactorial injury exacerbated by unreasonable management action. This was said to raise the possibility of a defence to the claim under s11A(1) of the 1987 Act. In order to establish the defence, however, the insurer required a specialist opinion from a psychiatrist in order to “disentangle” the causative factors and establish whether reasonable management action was the whole or predominant cause of the psychological injury.
Subsection 11A(1) provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Reference was made in the respondent’s submissions to the decision in Hamad v Q Catering Ltd[5] where Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[5] [2017] NSWWCCPD 6.
Consistently with Hamad, I do not accept that an IME referral is appropriate in every case in which a potential defence under s 11A(1) arises. The applicant or his nominated treating doctor may be able to provide adequate information as to the relative contribution of any relevant management action to an alleged injury. It is necessary to consider the actual information provided in each case.
In this case, the initial WorkCover certificate completed by Dr Burton made a diagnosis of an adjustment disorder due to a “change in work circumstances causing undue stress and anxiety”. This certificate alone gave very little insight into the causative factors to the applicant’s condition.
The worker’s injury claim form completed by the applicant on 15 December 2020 described the injury in the more detail:
“Due to structural changes and reduction in headcount, I was assigned duties for The Australian newspaper and online assets in July 2020. The work was very challenging due to the change in resource structure, increased workload, and deterioration of the advertising market due to Covid-19. My work became much more stressful and my responsibilities increased and it was much more difficult to secure advertisers because of the state of affected my mental health which I raised with my manager on 2 November 2020. In response, on 11 November 2020, my manager put me on a performance management plan.”
This information from the applicant suggested that management actions with respect to performance appraisal and possibly transfer were potentially causative of the applicant’s injury. Although action with respect to transfer was not ultimately relied on by the insurer in its s 78 notice, the applicant’s own reference to changes in resource structure and being assigned new duties at least raised this as a possibility.
I accept that the information initially provided by Dr Burton, in the context of this information from the applicant, was inadequate for the purposes of determining whether management action was the whole or predominant cause of the injury.
The correspondence before me indicates that Dr Burton’s clinical notes were requested on 18 December 2020. On the same date, Dr Burton was sent a questionnaire by the insurer requesting further medical information.
Although this had been foreshadowed in discussions with the applicant earlier, the first request for the applicant to choose an IME appointment was issued on 4 January 2021. It does not appear that Dr Burton’s clinical notes or completed questionnaire had been made available to the insurer by that date. Almost three weeks had passed since the notes were requested, although that period did cover the Christmas and New Year break.
It is relevant to note that the 21 day period in which the insurer was required to accept liability, accept liability on a provisional basis for a period of up to 12 weeks or dispute liability pursuant to s 274 of the 1998 Act was due to expire on 5 January 2021. That period was calculated in calendar days irrespective of any public holidays over the Christmas and New Year period.
When asked by the applicant’s legal representative to state the basis on which an IME was appropriate under the Guidelines, the insurer’s initial response was that information from
Dr Burton was “unavailable” and “more information” about the applicant’s “medical diagnosis, symptoms, causation, treatment plan, capacity to work and prognosis” was required. The applicant was informed that further information and clinical notes had been requested from Dr Burton on 18 December 2020 but no reply had been received. This response suggested that the information from the applicant’s doctor was both unavailable and inadequate although the expression “inadequate” was not actually used.
The applicant then asserted that the insurer had not given Dr Burton a “reasonable” opportunity to respond to the request for further information, noting the Christmas period. Consistently with Part 7.7 of the Guidelines and the obligation in Part 7.1 to contact the nominated treating practitioner to try to resolve these issues, the insurer chased up a response from Dr Burton.
It appears that the questionnaire was returned to a case officer at the insurer on 7 January 2021, although there was some confusion about whether it had been received. Dr Burton was asked in this questionnaire about the cause of injury. Dr Burton stated “this is secondary to a change in work role with new manager”. The applicant’s account of the cause of his injury was recorded as “A change in work role, increased responsibilities, change in market situation”. Asked to list all the factors / incidents which have led to the injury, Dr Burton referred to the above and his “consult notes”.
Dr Burton’s clinical notes as at 7 January 2021 appear to have been attached to the completed questionnaire. The notes of an initial consultation on 26 October 2020 made reference to a number of psychological symptoms in the context of:
“…started new role at work
new boss - this is stressful - feels targeted, isolated
sometimes wakes with heart racing
lots of pressure to perform well in underperforming market”
A mental health care plan was completed on 27 October 2020 and the applicant was prescribed escitalopram. On 19 November 2020 Dr Burton noted:
“…work stress
not sleeping, losing weight, not eating
very anxious
ongoing troubles with boss at work - has been put on performance management plan
boss arranged for EAP contact
this occured after pt spoke with boss, boss had initiated meeting after some colleagues expressed concern for his
wellbeing
does feel he has been treated unfairly by boss - unrealistic targets have been set ??gearin gup for constructive dismissal”
On 11 January 2021, the insurer wrote again to the applicant requesting an IME be completed. This was said to be on the basis that although the completed questionnaire had been received, “further information is required in order to help us determine liability”.
Having regard to the information available to the insurer at this point I accept that it remained inadequate to determine the hierarchy of causative factors to the injury for the purposes of s11A(1). The information from Dr Burton read together with the information provided from the applicant still raised the possibility of some contribution from actions by management with respect to transfer or performance appraisal, but Dr Burton had not addressed whether those actions were or were not the whole or predominant cause of the injury.
In submissions at arbitration, the applicant suggested that the insurer had before it all the information it required to determine lability. Dr Burton’s questionnaire responses did not suggest management actions under s 11A(1) were causative of the injury. Those responses must, however, be read in the context of all the information provided to the insurer including the claim form and clinical notes.
In further correspondence between the insurer and the applicant’s solicitor the insurer asserted that “specialised insight” from a psychiatrist was required. Asked to explain this, the insurer responded:
“The NTD are not qualified to provide a DSM-V diagnosis so we require an IME to provide a diagnosis in accordance with DSM-V and causation in terms of the whole or predominant cause.
The NTD diagnosis and causation statement is inconsistent with other medical and factual evidence contained on the claim. "Changes in work circumstances" brings S11A into consideration as a defence but is subject to independent medical and factual investigations.”

Whilst I accept that it was inaccurate to assert that Dr Burton was not qualified to make a diagnosis of the injury, the remainder of this explanation indicates that an opinion on causation and the whole or predominant case of the injury for the purposes of s 11A(1) was required having regard to the other medical and factual evidence.
Comparing the evidence in this case with Part 7.1 of the Guidelines, I find that at this point in time the insurer had properly formed the view and articulated to the applicant that:
(a)    information from Dr Burton was unavailable or inadequate;
(b)    contact had been made to try to resolve the issue with Dr Burton and this was evidenced on the claim file;
(c)    the information from Dr Burton remained inadequate; and
(d)    the information required from an IME related to diagnosis of the injury and determination of the contribution of work incidents, duties and/or practices to the injury.
The reasons for the referral would have, in the form of the correspondence between the insurer and his legal representative, been documented on the claim file.
I accept that the articulation of this information was piecemeal. I accept that it was not articulated as clearly as it might have been. The applicant’s solicitor was certainly entitled to seek clarification and explanation from the insurer to ascertain whether the Guidelines had been complied with. I am, however, satisfied that the requirements of Part 7.1 of the Guidelines were met.
In making this finding I have considered the submissions made by the applicant at hearing that if the information from Dr Burton remained inadequate further enquiries should have been made. Whilst the Guidelines refer to the need for “evidence of contact (or multiple attempts to contact) to try to resolve the issue”, I do not accept that the insurer was obliged under Part 7.1 of the Guidelines to return to Dr Burton multiple times or keep returning to him until the information was obtained. I accept the respondent’s submission that the applicant’s submissions read some additional obligation into the Guidelines at Part 7.1 than is expressed. Whether multiple attempts at contact is warranted is, however, matter that might go to the “reasonableness” of the request for the purposes of Part 7.7 of the Guidelines.
In any event, the insurer did send a second questionnaire to Dr Burton. That was returned by Dr Burton on 20 January 2021. Dr Burton was asked what he believed to be the main contributing factor to the applicant’s psychological condition. Dr Burton responded:
“Change in work role, additional work duties and pressures in a changing market (COVID) with undue pressures, unrealistic expectations.”
Dr Burton was also asked if he believe that the applicant’s injury was wholly or predominantly caused by the actions of management with respect to performance appraisal and/or discipline. Dr Burton responded:
“The main injury was the result of the above. Performance appraisal may have exacerbated this.”
The applicant has submitted that this response indicated that performance appraisal was only a superficial aggravating factor to a condition which was already in place. If the insurer believed Dr Burton’s reasoning was not disclosed, it was open to the insurer to continue to communicate with the doctor to enquire as to his reasoning.
The respondent took the view that the information remained inadequate for the purposes of determining liability and I accept this was a reasonable position. Dr Burton’s responses continued to suggest some causative contribution from management actions with respect to performance appraisal but were ambiguous as to the relative contribution.
By 27 January 2021, the insurer had the second factual investigation report which included the witness statements referring to informal performance counselling since 2 September 2020 and a decision being made subsequently to proceed with formal performance management.
I accept that on all of the evidence that it was reasonable for the insurer to request an IME to investigate further whether actions under s 11A(1), were the whole or predominant cause of the psychological injury. While it was open to the insurer to seek further clarification from Dr Burton I do not accept that it was obliged to do so by the Guidelines. I am satisfied that it was reasonable for the insurer to continue to seek this information from an IME.

The applicant’s submissions take issue with the manner in which the insurer’s compliance with Part 7.1 of the Guidelines was communicated. Whilst it might have been desirable for the insurer to provide a “single email” setting out “all the reasons why” an IME was requested and “how the Guidelines had been complied with”, and “attaching all supporting evidence”, as requested by the applicant’s solicitor, this required more from the insurer than is set out in Part 7.1 of the Guidelines. Part 7.1 contains no particular obligation on the insurer with regard to communication with the applicant. It only requires that there be “evidence” and documentation on the claim file.
A separate obligation arises under Part 7.5 of the Guidelines to provide notification of a referral to an IME in a particular way. No submissions were made by either party at hearing with regard to the insurer’s compliance with Part 7.5 of the Guidelines. As the matter was not put in issue by either party I decline to make any determination as to whether that notification to the worker complied with the obligations in Part 7.5. I note, however, that in addition to the emails giving the applicant a choice of three IME appointments, a letter in standard form was sent to the applicant on 12 January 2021. When the applicant failed to make an election, a letter notifying the applicant of the appointment with A/Prof Kaplan was sent on 27 January 2021. That letter and the fact sheet which was attached set out information relevant to Part 7.5.
The applicant did make submissions that the insurer’s obligations in Part 7.7 were not satisfied. Part 7.7 deals with the reasonableness of the insurer’s requirement to attend an IME in all the circumstances of the case. This appears to be an additional and separate obligation to the obligations in Part 7.1.
Part 7.7 also imposes particular obligations on the insurer when a worker advises the insurer that he or she considers the requirement to attend an IME is unreasonable. The numerous emails from the applicant’s legal representative to the insurer convey an opinion that the insurer’s requirement for the applicant to attend an IME was unreasonable. Reasons why the applicant considered the IME referral to be unreasonable were set out in those emails.
Following the letter formally notifying the applicant of the appointment with A/Prof Kaplan dated 27 January 2021, the applicant’s legal representative prepared a further letter which, amongst other things stated that the worker considered the proposed IME to be unreasonable because the insurer had not complied with the guidelines and was not entitled to an IME under the Guidelines.
Once this letter was received, Part 7.7 required the insurer to:
(a)    consider this objection;
(b)    advise the applicant of its decision following this consideration;
(c)    include contact information for the WIRO;
(d)    ensure adequate written notice was received by the applicant; and
(e)    ensure that the worker had an opportunity to comply with a reasonable request before any decision to suspend payments of weekly compensation.
Notwithstanding that the objections set out in the applicant’s legal representative’s earlier correspondence had been responded to, the letter dated 28 January 2021 did, in my view, require a response in accordance with Part 7.7.
The only correspondence to the applicant following this letter that I can discern is the s 78 notice issued on 10 February 2021. In the intervening period, the appointment scheduled for 2 February 2021 passed without the applicant attending.
The s 78 notice referred in general terms to the reasons why the insurer considered an IME appropriate. It referred to the applicant’s objection to the IME as set out in the letters forwarded to the respondent’s solicitor and to the insurer on 27 and 28 January 2021. The notice observed that the IME appointment was not cancelled and the applicant did not attend. The applicant was advised of the decision to suspend any potential compensation under the 1987 Act. Contact details for the WIRO were provided.
I am not satisfied that the s 78 notice clearly advised the applicant that his objection had been considered or the outcome of that consideration. Even if the s 78 notice could be construed that way, I am not satisfied that the applicant was advised of the outcome of the insurer’s consideration of the objection dated 27 or 28 January 2021 prior to the scheduled appointment with A/Prof Kaplan on 2 February 2021. As a result, the applicant was denied a reasonable opportunity to attend an IME before the decision was made to suspend benefits.
For the reasons set out above, I am not satisfied that the mandatory obligations in Part 7.7 were complied with. Whilst I am satisfied that it was appropriate for the insurer to request that the applicant attend an IME having complied with Part 7.1 of the Guidelines, I am not satisfied that the applicant’s objection was dealt with in accordance with paragraphs four and five of Part 7.7 of the Guidelines.
Were the insurer to provide notice of a new IME appointment in accordance with Part 7.5 and deal with any objection in accordance with Part 7.7 it is possible that the Guidelines would be satisfied such that any failure on the applicant’s part to attend would trigger the disentitling provisions in s 119(3).
In all the circumstances and on the evidence before me, however, I am not satisfied that the applicant has to date been required to submit himself for examination by a medical practitioner in accordance with the Guidelines. I am not satisfied that the applicant has refused to submit himself for examination under s 119. The disentitling provisions in s 119(3) do not apply.

Outstanding disputes

In addition to the dispute with respect to the application of s 119, the present proceedings seek resolution of the other matters notified in the respondent’s s 78 notice. Those matters are yet to be the subject of submissions by the parties. At present, the Commission remains obliged to consider those disputes unless they are, for example, withdrawn and voluntary payments made.
The respondent has sought a stay of the proceedings, in accordance with common law principles, on the basis that the absence of an IME leaves it in an unsatisfactory position to defend the case. I am not, however, satisfied that the procedural code which applies to Commission proceedings provides for a stay.
The Commission must act according to equity, good conscience and the substantial merits of the case and facilitate a just, quick and cost effective resolution of the dispute. In the circumstances, I consider it appropriate to list this matter for further teleconference to enable a discussion as to how the future conduct of the proceedings might achieve these objects.

[2021] NSWPIC 240

12 July 2021