Millgate v Nationwide News Pty Ltd - [2021] NSWPIC 240

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 240
Decision Date: 12 July 2021

CaseChat Overview and Summary

In the matter of Millgate v Nationwide News Pty Ltd, the applicant sought to recover workers' compensation from the respondent. The dispute centred around the applicability of section 119(3) of the Workers Compensation Act 1998, which addresses the suspension of compensation rights. Additionally, the case examined whether a referral to an Independent Medical Expert (IME) was appropriate and whether it complied with the relevant guidelines. The applicant raised concerns regarding the potential application of section 11A(1) of the Act, which pertains to the availability of medical information from their general practitioner. The crux of the matter was whether the referral to the IME was reasonable and adhered to Part 7.7 of the Guidelines.

The primary legal issues revolved around the interpretation and application of sections 119(3) and 11A(1) of the Workers Compensation Act 1998, as well as the procedural requirements set forth in Part 7.1 and Part 7.7 of the Guidelines. The court needed to determine if the referral to the IME was appropriate and whether it complied with the stipulated guidelines. Furthermore, the court had to assess if the applicant's objections to the referral were adequately addressed in accordance with Part 7.7 of the Guidelines.

The court held that the referral to the IME was indeed compliant with Part 7.1 of the Guidelines, however, it did not sufficiently address the applicant's objections in accordance with Part 7.7 of the Guidelines. The court further ruled that section 119(3) did not operate to suspend the applicant's right to recover compensation. Consequently, the matter was listed for a further teleconference to address the remaining notified disputes. The decision underscored the importance of adhering to procedural guidelines when making referrals to IMEs in workers' compensation claims.

The final orders of the court mandated a further teleconference to resolve the outstanding disputes, ensuring that all procedural requirements were met in accordance with the relevant sections of the Workers Compensation Act 1998 and the Guidelines.

Orders