Parker v Warrumbungle Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Parker v Warrumbungle Shire Council [2022] NSWPIC 160
APPLICANT:	Kim Parker
RESPONDENT:	Warrumbungle Shire Council
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for declaration that applicant was not required to attend earning capacity assessment pursuant to section 44A of the Workers Compensation Act 1987, where liability for the claim has been disputed; Held- there is no dispute before the Commission; and it has no jurisdiction to make the declaration sought; consideration of Chatto v Transfield Services (Australia) Pty Ltd; Widdup v Hamilton; University of New South Wales v Lee; De Vries v Bega Valley Shire Council; the order sought is declined and the Application is dismissed.
ORDERS MADE:	1. That the order sought is declined and the Application is dismissed.

STATEMENT OF REASONS

BACKGROUND

The applicant, Kim Parker (Mr Parker) is employed by the respondent, Warrumbungle Shire Council (the Council) as director of corporate and community services.
Mr Parker sustained a psychological injury, deemed to have occurred on 26 April 2021, as a result of interpersonal conflict with the respondent’s general manager. He gave notice of the injury by email on 20 July 2021.
On 27 July 2021, the respondent’s workers compensation insurer, StateCover Mutual Limited (StateCover) advised the applicant that it had a reasonable excuse not to commence weekly payments, as notice of the injury was given more than two months after it occurred. It advised of the steps it would take to further investigate the claim, and that the applicant was provisionally covered for medical and related treatment up to $1,000. It also advised that it may be necessary to establish an injury management plan.
The applicant completed an Employee Claim Form (the Claim Form) on 31 July 2021. It provided little detail of the injury. It is not clear to me that the copy of the Claim Form attached to the Reply is complete. Page two, on which details of the injury were probably provided, appears to be missing. Nothing turns on this.
On 24 August 2021, StateCover issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998.
StateCover maintained that Mr Parker’s psychological injury was wholly or predominantly caused by the Council’s reasonable actions with respect to performance appraisal or discipline, so that it had a defence to his claim, pursuant to section 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). In the alternative, it disputed that Mr Parker suffered incapacity as a result of a compensable psychological injury. It asserted that he had a current work capacity, and had done so since August 2021, or earlier, and was not using his residual work capacity to its maximum or at all. StateCover also disputed that medical or related treatment was reasonably necessary as a result of a compensable psychological injury.
By letter dated 13 September 2021, Ms Jasmine Kumar, case manager, of StateCover advised the applicant that it had arranged an earning capacity assessment (ECA) with
Mr Richard Erber, described as a “Rehab Counsellor/Vocational Assessor”, on 6 October 2021, to be performed by telehealth.
On 4 October 2021, Mr Parker sent an email to Ms Kumar. He stated that his legal adviser could not see a reason why he needed to attend the appointment, given that his claim had already been declined and she had a copy of his most recent certificate of capacity (COC) to 19 October 2021. He also asked whether a copy of the report from the appointment he had attended on 10 September 2021 with Dr Sathish Dayalan had been provided to his GP, psychologist and legal adviser.
The applicant’s solicitors wrote to StateCover on 5 October 2021. They requested that all communications be directed to their office. They asked StateCover to clarify the basis on which Mr Parker could be compelled to attend the appointment. It was their understanding that StateCover had already issued a dispute notice declining liability for the injury generally. “For abundant clarity”, StateCover should assume the applicant would not be attending the scheduled appointment.
On 6 October 2021, Ms Rachel Baker (for Ms Erin Kennedy) of StateCover responded to the applicant’s solicitors. She “wonder[ed]” why the applicant’s objection to the ECA appointment had been communicated directly to StateCover, rather than by their firm “(which would be the better practice, if you wish to ensure that we don’t communicate directly with your client on contentious legal issues)”.
Ms Baker wrote that it was very late for the applicant to be objecting to the assessment, less than two days before it was to take place. To enable more time for consideration of and response to his objection, the appointment was to be rescheduled to a date to be advised, in the next 21 days.
Ms Baker then went on to quote section 44A of the 1987 Act, with “(bolding added by us)” (emphasis in original). She stated that failure by the applicant to attend the work capacity/ECA without a reasonable excuse, or obstruction of the assessment, “will lead to a notional suspension of weekly compensation payments and/or the right to recover compensation under section 44A(6)” of the 1987 Act.
Ms Baker invited submissions in writing as to why the applicant said the assessment was not reasonable and did not comply with the requirements of section 44A of the 1987 Act or the Workers Compensation Guidelines 2021 (the Guidelines). StateCover would then respond.
If StateCover believed any persisting objection to the assessment was unreasonable, it proposed to issue a further section 78 notice, in which it would rely on a dispute under section 44A(6) of the 1987 Act “and which will object to the prosecution of any future proceedings in the Commission”. In those circumstances, “StateCover will not make any offers of settlement in respect of the weekly compensation claim and will apply for an order that the weekly compensation claim in the anticipated Commission proceedings be struck out”. Alternatively, it would “apply for an order that the weekly compensation claim be stayed until such time as your client attends the outstanding earning capacity/work capacity assessment”.
“In short” StateCover asserted that the applicant’s obligation to attend the assessment under section 44A(5) of the 1987 Act applied irrespective of whether or not a section 78 dispute notice had been issued. It referred to the decision of Arbitrator Wynyard, as he then was, in Chatto v Transfield Services (Australia) Pty Ltd (2016) NSWWCC 5929/15 (Chatto).
StateCover requested that the applicant’s solicitors respond in writing by 4pm on 8 October 2021, confirming that Mr Parker would attend the rescheduled assessment, to take place on a date to be advised shortly. The report of Dr Dayalan, dated 15 September 2021, was served. StateCover note[d] that the report supports the proposition that the applicant had a partial capacity for work, “further justifying the proposed work capacity/ECA appointment”.
On 11 November 2021, Ms Baker again wrote to the applicant’s solicitors. She quoted an email they had sent on 6 October 2021 in response to her letter of the same date. The email read:
“…It may be appropriate for this issue to be referred to the PIC for determination. We are not aware of any other insurer or self-insurer asserting an entitlement to have a client submit for an ECA after the denial of a claim. To be clear, is it your assertion that a work capacity decision can be scheduled at any time, even after the denial of a workers compensation claim (and presumably at any time into the future), and that our client is compelled to attend any such appointment?”
Ms Baker responded that it was irrelevant what other insurers or self-insurers did. “Some StateCover officers have previously worked for other organisations and have seen other insurers or self-insurers arrange ECA appointments…subsequent to liability for a claim having been denied”. She confirmed that StateCover asserted that a work capacity assessment appointment can be scheduled when an insurer is required to do so, or at any other time when it proposes to conduct a work capacity assessment or work capacity decision. She again referred to section 44A of the 1987 Act and the Guidelines.
Ms Baker advised that the work capacity/ ECA with Mr Erber would take place on 25 November 2021 at 10am.
StateCover would not be referring the issue to the Personal Injury Commission (the Commission) if the applicant refused to attend the appointment,
“What we will definitely do, instead, if your client refuses to attend this appointment, is issue a further section 78 notice which will rely on a dispute under section 44A(6) of the 1987 Act, and which will object to the prosecution of any further proceedings in the Commission. In these circumstances, StateCover will not make any offers of settlement in respect of the weekly compensation claim and will apply for an order that the weekly compensation claim in the anticipated Commission proceedings be struck out. In the alternative, StateCover will apply for an order that the weekly compensation claim be stayed until such time as your client attends the outstanding earning capacity/work capacity assessment in accordance with his obligation under section 44A(5) of the 1987 Act.”
StateCover did not,
“propose to continue with any further debate with your Mr Dougall on this issue if he or your firm continues to fail to engage with the relevant clauses of the legislation…, clauses of the Guidelines…or the case law, when persisting with untenable objections to this assessment appointment.”
On 19 November 2021, the applicant lodged with the Commission a Miscellaneous Application for “Direction for provision of a medical report”.
The description of the dispute was as follows:
(a)     the applicant sustained a psychological injury with the deemed date of injury being 26 April 2021 as a result of interpersonal conflict with the general manager;
(b) on 24 August 2021, dispute notice was issued by the respondent insurer disputing liability for the applicant’s claim pursuant to section 11A(1) of the Act. The applicant has not been in receipt of any weekly compensation benefits or medical treatment expenses since the denial of the claim on 24 August 2021;
(c)     the respondent insurer now submits that the applicant is required to attend an earning capacity assessment pursuant to section 44(A) [sic] of the Act, and
(d)     in the context of the ongoing denial of liability of the claim, the applicant seeks a determination from the Commission as to whether he is required to attend the proposed assessment and submits that the insurer’s approach is inconsistent with section 199 and section 119(4) [sic: section 119 and 119(4) of the 1998 Act].
The respondent lodged its Reply on 13 December 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain to be determined:
(a) whether the Commission has jurisdiction to deal with an Application that involves a declaration, and
(b) if it is found that the Commission does have jurisdiction, whether the respondent is entitled to arrange a work capacity assessment under section 44A of the 1987 Act, and the applicant is obliged to attend.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 16 March 2022.
Mr Tanner of counsel, instructed by Mr Dougall, appeared for the applicant; and Mr Young of counsel, instructed by Ms Malouf, appeared for the respondent. Mr Parker was present.
Mr Underwood, Ms Payne and Ms Kennedy from StateCover, also attended.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Medical evidence

Dr Charlotte Dobson – General Practitioner (Warrumbungle Medical Centre)

I do not believe it is necessary to refer in detail to the clinical records, as I am not required to determine the dispute between the applicant and the respondent that was notified in the section 78 notice.
On 23 August 2021, Dr Dobson recorded that the applicant was feeling about 70% better, physically and mentally. He had been helping with some fencing, which he felt helped improve his mood. He felt he was able to string sentences together and follow his train of thought. He was only about 50% better emotionally, with a high level of anxiety sitting under the surface. He felt he was still quick to anger at times, which was unlike him.
Dr Dobson noted that the applicant had recently had to “talk over absolutely everything” with an investigator. This felt very intense, but he felt better now it was over. He had had contact from a return to work coordinator and there was a management plan regarding returning to work, which he felt was positive.
Dr Dobson recorded that she had seen objective improvement in the applicant. He had become tearful only once during the consultation, and he showed a sense of humour. He was able to think about the future and what this might mean for work, which he was not able to think about before.
Dr Dobson concluded that the applicant seemed to be slowly improving. The combination of medication and psychology was slowly helping him. She thought he needed another four weeks off. If he continued to improve, “then perhaps can look at a staged return to work”.
Dr Dobson responded on 3 August 2021 to a series of questions from StateCover.
Dr Dobson reported that the applicant met the DSM-5 criteria for a diagnosis of depression. He had told her that over the past two years, there had been multiple small issues, and he felt significant pressure to complete tasks within unsustainable timeframes. “It all came to a head when he received a performance review letter stating everything that he had failed to do”.
The applicant told Dr Dobson that the letter was “the tipping point for him”. There had been various other issues over the years. She had referred him to Mr Richard Brown, a psychologist and he had started taking antidepressants. He was currently unfit for work. It was difficult to state a timeframe for recovery. Mr Parker was making good progress with the current plan.
The last entry in the clinical records is dated 20 September 2021. Dr Dobson recorded that the applicant’s initial WorkCover claim had been declined. He had a psychiatrist appointment on 10 September 2021. He had an appointment with a counsellor/psychologist on 6 October 2021 to assess work capacity (this is the appointment that the applicant refused to attend).
The applicant had still been seeing Mr Brown. He had done an online DASS21 – “not much improvement really”. He was physically feeling better, but mentally did not feel he was making much progress. He could not see the light at the end of the tunnel and felt quite panicked under the surface. “Still feels all over the place, no motivation, easy to anger”.
Dr Dobson increased the dosage of his medication. She was to review him in four weeks.
Dr Dobson has issued medical certificates and certificates of capacity (COCs) up to 19 October 2021, when the applicant was certified as having no current work capacity.

Mr Richard Brown – Psychologist

Mr Brown’s clinical records are in evidence. I do not intend to refer to them in detail.
The first entry is dated 18 May 2021. The applicant reported that he had had recent experiences at work, which he believed to be bullying, from his line manager. Mr Brown diagnosed adjustment disorder with anxiety and depression. He noted that the applicant had five appointments with him in 2017-2018, and three in early 2019, when relationship issues were the primary focus of counselling, although they had touched on other issues.
Mr Brown believed the applicant would benefit from being away from work for at least eight weeks. He had provided cognitive behavioural therapy.
On 27 July 2021, Mr Brown recorded that the applicant found it less distressing (generally) to think of some experiences at work that had caused him to be very distressed before their cognitive processing therapy sessions. He had found these memories less frequent. He continued to experience severe anxiety and depression. Thoughts of returning to his
pre-injury place of employment continued to cause great distress.
Mr Brown reported on 28 July 2021 that the applicant was suffering from a diagnosed medical condition. He noted that Mr Parker had been asked to attend “some form of assessment interview for his employer”.
Mr Brown opined that Mr Parker experienced extreme anxiety and distress in certain situations, and to participate in an assessment conducted by other than his treating practitioners would trigger such response and exacerbate his condition. He would issue a WorkCover certificate stipulating that he did not agree with the applicant attending.
Mr Brown reported to StateCover at its request on 16 August 2021. He opined that the applicant was suffering from adjustment disorder with depression and anxiety. This had developed wholly as a result of multiple workplace incidents, which amounted to persistent experiences of psychological bullying.
Mr Brown opined that the applicant was not fit for any work at that time. It was possible he would not ever be able to return to his pre-injury employment.

Dr Sathish Dayalan - Psychiatrist

Dr Dayalan was qualified by the respondent and reported on 15 September 2021.
Dr Dayalan recorded a history that the applicant entered into a performance agreement that commenced in February 2020. It placed “unreasonable demands” on him, without taking resource constraints into consideration. In May 2020, there was a performance review. The applicant was held accountable for tasks meant to be completed before he commenced work with the respondent.
Mr Parker had been required to take part in half-yearly assessments, one of which took place in February 2021. He was informed that he had not met more than half the expectations in his role. Due to the pressures and demands at the workplace, he had not contested the assessment. He received a letter dated 14 April 2021 advising he would have to attend quarterly assessment meetings.
Dr Dayalan diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. The applicant indicated there had been some improvement in his mental state over the last few weeks. He had noted improvement in his energy levels and motivation. However, he continued to present with anxiety symptoms and the correspondence advising that his claim had not been approved had exacerbated his anxiety.
Dr Dayalan opined that the applicant required ongoing treatment. An improvement in his condition would be associated with an improvement in his work capacity. He was partially incapacitated for work. He had indicated he would not be able to return to work with the respondent if Mr Bailey (the general manager) continued to work there. Dr Dayalan opined he would be able to work in a less stressful/demanding role, for perhaps 12 hours per week, gradually increasing as he made progress.

Dr Dayalan was unable to specify a role for the applicant and suggested this should be determined by a vocational rehabilitation consultation. However, he recommended a role that did not incorporate managerial responsibilities or involve strict deadlines. Roles as a director/manager would increase the risk of worsening the applicant’s anxiety.
The applicant had indicated he would like to return to work in the future but was apprehensive about taking a role he may not be able to perform. He had not taken any steps towards returning to work at the Council or applied for any alternate jobs. He may be willing to return to work if he did not have to work alongside Mr Bailey.
Dr Dayalan opined that it did not appear Mr Parker was motivated to return to work to his maximum capacity. His motivation was probably affected by his mental state, interpersonal issues and his age. It was likely that with improvement in his mental state, he may be willing to return to work in a reduced capacity.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore refer to them only briefly.

Respondent

As regards jurisdiction, the respondent submitted that the starting point is section 105 of the 1998 Act. Section 105(1) provides that the Commission has exclusive jurisdiction to examine and determine all matters arising under the 1998 Act and the 1987 Act. The section does not refer to specifically declaratory powers of the sort the respondent submitted the applicant is seeking.
The respondent referred to sections 288, 289 and 289A of the 1998 Act. It submitted that section 289 relates to disputes to be referred to the Commission. The applicant could not raise a dispute within the meaning of the legislation. An applicant can make a claim or object to certain parts of the evidence in the context of a claim, but it cannot raise a dispute within the meaning of section 289. The respondent referred to the subsections of section 289.
The respondent referred to the decision of President Justice Sheahan in Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85 (Widdup). His Honour found that the (Workers Compensation) Commission is a creature of statute, and its powers are determined by the statute that establishes it. It submitted that there is nothing in the Personal Injury Commission Act 2020 (the 2020 Act) giving the power to make the declaration/s the applicant seeks.
The respondent submitted that unless the applicant can point to a specific statutory power to make an order of the kind sought by him, then consistent with Widdup, there is no power to make such an order.
The respondent submitted that, even if I found there was jurisdiction for declaratory relief,
I would not exercise the discretion to grant it, in the interests of justice. There is nothing that is of detriment to the applicant. Section 44A refers to the suspension of weekly benefits. There are no weekly benefits to be suspended.
The respondent submitted that the disadvantage to it in providing declaratory relief is that it will not be able to deal with incapacity, but more particularly, its obligations for return to work and injury management. Section 41A of the 1998 Act provides that the requirements of workplace injury management apply even where there is a dispute as to liability. If what the applicant seeks were to be declared, it would be contrary to section 41A.
The respondent submitted that it had a right to arrange a work capacity assessment, even though liability is in dispute and the applicant is not in receipt of weekly payments. It referred to section 44A(1) of the 1987 Act. It submitted that the Guidelines don’t provide great assistance when it comes to work capacity assessments. Clause 5.2 provides the only guidance and says nothing about a bar on doing so if liability is in dispute. The applicant seeks to read this into section 44 and the Guidelines, which are not there and are inconsistent with section 44A(1).
The respondent submitted that it is relevant to the timing of the work capacity assessment, and consistent with the Guidelines, that it obtained Dr Dayalan’s report. It postdates the first section 78 notice and is new information as referred to in the Guidelines. Dr Dayalan found the applicant only partially incapacitated for work. This is different to the medical evidence that was previously available. The respondent submitted it would trigger clause 5.2 of the Guidelines.
The respondent submitted that if the applicant made a substantive claim for weekly payments that was before me, there would be no doubt that it would be entitled to obtain medical evidence and prepare a defence. It does not understand the applicant to submit otherwise. It submitted that would be a nonsense, contrary to common practice in the jurisdiction and procedural fairness.
The respondent referred to the section 78 notices with respect to its argument regarding section 44A and the Guidelines.
As regards the applicant’s reliance on section 119 of the 1998 Act, the respondent submitted that Mr Erber is not a medical practitioner within the meaning of that section. It referred to the decision of Arbitrator Sweeney, as he then was, in Nishi v Macquarie Group Services Australia Pty Ltd [2012] NSWWCC 119, regarding the definition of “medical practitioner”. It is now to be found in the Interpretation Act 1987.

Applicant

The applicant referred to the section 78 notice and submitted that the dispute will ultimately need to be determined in the Commission. That is the jurisdictional foundation. He submitted we are dealing with a subsidiary dispute in relation to his capacity and whether the respondent has some unfettered right to have him examined.
The applicant referred to section 105 of the 1998 Act as governing jurisdiction. He submitted that whether the respondent can require him to submit to further examination is a matter arising under the Act.
The applicant referred to section 274(1) of the 1998 Act, and the respondent’s obligations. Subsection (b) applies, as it disputed liability. Its stance is that it is not bound to manage this claim, which has been rejected absolutely. He referred to section 288(1) of the 1998 Act and submitted this is an element of a dispute about a claim.
The applicant submitted that the dispute is before me in the sense that it is the context and background to the specific declaratory order that is sought, which is relevant to the dispute as a whole, and a subsidiary dispute has arisen.
The applicant referred to section 289A(3) of the 1998 Act, and submitted that what is before me is a matter that arises out of the dispute that appears in the section 78 notice. He referred to section 289A(4) of the Act and submitted that it is in the interests of justice to deal with the matter, and it can’t seriously be suggested that the respondent is prejudiced in having to deal with this unnotified issue. The insurer has engaged with this issue, referring to the correspondence in the Application.
The applicant referred to section 43(1) of the 2020 Act. He submitted that the respondent was attempting to rely on technicalities and legal form, at the expense of equity, good conscience and the substantial merits of the case. He submitted that it is a matter of common sense that subjecting him to a further assessment poses a risk of aggravation.
The applicant referred to section 42 of the 2020 Act, which sets out the guiding principles to be applied, including to facilitate the just, quick and cost-effective resolution of the real issues. He submitted the issues are recorded in the section 78 notices, and the question is whether he should be required to submit to further examination, and to what extent that facilitates the real issues.
The applicant submitted that it is commonplace for the Commission to make declaratory orders. It is commonplace in injury management disputes. The reason he seeks a declaratory order is because he has the threat of further examination hanging over him. If the respondent has no right to have him examined, that needs to be dealt with sooner rather than later.
The applicant submitted that the respondent has had the opportunity to have him examined and to form a view as to his capacity. Dr Dayalan has provided an opinion in that regard. He submitted it was open to the respondent to make a work capacity assessment at that time, but it elected not to. He referred to section 44A(5) of the 1987 Act and submitted it is not reasonably necessary for him to attend any appointment. If the insurer wishes to make a work capacity assessment, it had information available to it.
The applicant submitted that the respondent had not properly complied with the Guidelines in arranging an independent medical examination (IME). He referred to the decision in University of New South Wales v Lee [2021] NSWPICPD 4 (Lee).
The applicant submitted that it is relevant that there is a dispute as to liability. The respondent has no legitimate interest in a work capacity assessment because it doesn’t accept that it has any liability to him. His capacity for work is irrelevant to it. He submitted that to subject him to this kind of assessment is effectively an abuse of the statutory provisions on which the respondent seeks to rely.
The applicant submitted that the assessment cannot be reasonably necessary when the work capacity assessment has no valid purpose. It would be able to conduct an assessment having had Dr Dayalan’s opinion and having regard to the evidence from the applicant’s treaters.
The applicant submitted that section 119 of the 1998 Act governs medical examinations in the context of payments already being made. He referred to section 119(3).
The applicant referred to the decision of Arbitrator Harris, as he then was, in the matter of De Vries v Bega Valley Shire Council [2018] NSWWCC 22 (De Vries). Arbitrator Harris considered whether the Commission could order a further examination, which he considered inappropriate.
The applicant submitted that section 41A of the 1998 Act does not apply to work capacity assessments or medical examinations that fall elsewhere in the statutory scheme. The Application refers to relief as to whether the applicant is required to attend the proposed assessment. He drew the distinction between the assessment the respondent was able to perform and the requirement that he surrender to an examination. What he is seeking is a determination that he is under no obligation to submit to any further examination.
The applicant submitted there is nothing before me that indicates how Mr Erber qualifies as a healthcare professional. He submitted that the requirement that he be examined by Mr Erber was sent in a letter to him dated 13 September 2021. He had been examined by Dr Dayalan on 10 September 2021 and the report came out on 15 September 2021. The letter wasn’t written because new information had come to light. There is evidence from Dr Dayalan as to his capacity. That was the material on which the respondent could have made an assessment.

Respondent in reply

The respondent submitted section 105(1) of the 1998 Act commences with “subject to this Act”. Sections 288, 289 and 289A of the 1998 Act are essentially a “mini code of jurisdiction”. Section 288 talks about “the dispute”. The disputes are those outlined in section 289.
The respondent referred to the applicant’s submission that what is before me was an element of a dispute, as ancillary to a dispute. It submitted that is all he could say, as the Commission has jurisdiction to deal with substantive claims, which is not what is before me. There is nothing in sections 288, 289 or 289A that talks about ancillary elements or subsidiary disputes.
The respondent submitted that section 289A(3) provides that the Commission may not hear or otherwise deal with any dispute if this section provides that it cannot be referred for determination. It goes on to say “However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute”. The respondent submitted this is not arising out of a dispute under section 11A. It relates to what the applicant says his obligations are to attend a medical examination or vocational assessment.
The respondent next submitted that section 289A(4) of the 1998 Act refers to something previously unnotified. Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; (2007) 6 DDCR 488 refers to something the respondent raises in relation to a dispute. The respondent is not seeking leave to raise a dispute later in the proceedings. It is the applicant raising a dispute, which does not arise out of the respondent’s dispute.
As regards the applicant’s submission regarding the avoidance of technicalities in the Commission, the respondent submitted that we shouldn’t be here in the first place because it’s not a dispute. However, it is the applicant who seeks relief, and he must prove there is jurisdiction. The respondent submitted there is no dispute before me that enlivens jurisdiction.
The respondent submitted the Application is misconceived and unnecessary, which leads to the applicant’s point about abuse of process or that it is unnecessarily burdensome on him to attend this examination. The respondent submitted there is no abuse. The applicant can simply say he will not attend. The respondent can’t compel him to attend and is not asking that he attend. The respondent is here because of this misconceived and unnecessary Application.
The respondent referred to Dr Dayalan’s evidence that if it wanted to know exactly what work the applicant could do, it needed a vocational rehabilitation consultant, which is what
Mr Erber is. Section 119 of the 1998 Act does not apply because Mr Erber is not a medical practitioner. De Vries is not relevant to these proceedings.
As regards the applicant’s submission that a work capacity assessment could not have any relevance or application where a claim is denied, the respondent submitted that the reality is that the applicant intends to pursue a claim. In anticipation, the respondent is entitled to manage the claim. It hasn’t forced the applicant to do anything. There is no abuse of process. If a declaration is made that workers not attend work capacity assessments if liability is disputed, it will have broader ramifications for the industry and respondents’ obligations to proactively manage claims.
The respondent submitted there is power and opportunity for respondents to make these arrangements, but no abuse, because they can’t compel the applicant to attend.
As regards section 44A(5), which refers to “medical practitioner or other health care professional”, the respondent submitted that it is discretionary, as it includes the word “can”. It also submitted that I can take quasi-judicial notice that rehabilitation assessors have healthcare training backgrounds. Health care professional is not defined in the Act.
The respondent finally submitted that the Guidelines provide that a worker cannot be required by the insurer to attend more than four appointments per work capacity assessment. The respondent had sought two. There is no abuse of process.

SUMMARY

Section 105 of the 1998 Act provides:
“(1)    Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.
(2)     The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.
(3)     The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984 ) the District Court has jurisdiction to examine, hear and determine.
(4)     Subject to this Act and the Compensation Court Act 1984 , the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act.
(4A) After the repeal of the Compensation Court Act 1984 , the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).
(5) Despite section 17 (4) of the Compensation Court Act 1984 , the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter.
(6)     For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references--
(a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or
(b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.”
Section 288 of the 1998 Act, which appears in Part 4 – Compensation Dispute Determination, provides:
“ (1) Any party to a dispute about a claim may refer the dispute to the President for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.
Note : A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment).
(2) The President may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.”
Section 289 of the 1998 Act provides:
“(1)    A dispute about a claim for weekly payments (other than a dispute based on a work capacity decision) cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note : The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments pursuant to a work capacity decision (without having disputed liability) constitutes a failure to determine the claim.
(2)     A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.
Note : Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.
(3)     A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note : The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4)     A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until--
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.
(5)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”

Section 289A of the 1998 Act provides:
“(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if--
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Sections 289 and 289A also appear in Part 4 of the 1998 Act.
Section 105 of the 1998 Act confers on the Commission jurisdiction in respect of all matters arising under this Act and the 1987 Act, but that jurisdiction is “subject to this Act”.
The relief sought by the applicant is a determination as to whether he is required to attend a proposed ECA, pursuant to section 44A of the 1987 Act. In my view, what the applicant is seeking is a declaration that he is not required to attend the assessment proposed by the respondent.
I do not accept that there is a dispute between the parties, within the meaning of section 289 of the 1998 Act, before the Commission. As the respondent submitted, sections 288 to 289A of the Act essentially form a “mini code of jurisdiction”.
Section 289 of the 1998 Act includes the disputes that may be referred to the Commission, and the circumstances in which they may be referred. There is no dispute between the parties as to any of those matters. The applicant has been requested by the respondent’s insurer to attend an ECA/work capacity assessment. He has refused to do so. There the matter rests.
I do not accept the applicant’s submission that the jurisdictional foundation of the matter is that the dispute notified in the section 78 notice will ultimately need to be determined by the Commission, and that this is somehow a “subsidiary dispute”, so that it should be dealt with in these proceedings.
The matters notified by the respondent in the section 78 notice may or may not ultimately come before the Commission for determination. Some or all may be resolved between the parties. Mr Parker may choose not to pursue the matter. None of the matters notified in the dispute notice is currently before me. There is no basis in the legislation for the Commission to make any determination as to whether the applicant is required to attend an assessment arranged by StateCover.
The applicant submitted that it is commonplace for the Commission to make declaratory orders, referring to injury management disputes, but without citing any precedent. The problem with that submission is that there is no dispute before me.
StateCover referred in its correspondence with the applicant’s solicitors to the decision of Arbitrator Wynyard, as he then was, in Chatto. That decision may be distinguished. The applicant had filed an Application to Resolve a Dispute, seeking weekly benefits and payment of medical expenses. There was therefore a dispute, within the meaning of section 289, before the Commission.
The applicant referred to the decision in Lee. It may also be distinguished. The insurer had been paying the worker provisional weekly benefits. It suspended the payments, pursuant to section 119 of the 1998 Act, because the worker had refused to attend an IME, maintaining that the insurer had not complied with the requirements of the section and the Guidelines.
Deputy President Snell held [at 48]:
“It is clear the sole issue between the parties was whether the University had proper grounds pursuant to s 119(3) of the 1998 Act to cease making provisional payments. The Arbitrator correctly observed that this was the basis on which the University disputed its liability to pay weekly benefits:
‘The [University] was disputing its liability to pay the [respondent’s] claim for weekly benefits because of the failure on the part of the [respondent] to attend the IME with
Dr Miller on 18 March 2020. Pursuant to s 289(1) of the 1998 Act, the [respondent] is therefore entitled to refer the dispute for determination by the Commission.’” (Emphasis added).
The Application initially brought by Ms Lee sought only an order that the proposed IME did not comply with section 119 of the 1998 Act or the Guidelines. However, by correspondence from her solicitors and at the hearing of the matter before Arbitrator Batchelor, as he then was, she sought further orders. They included, inter alia, the reinstatement of weekly payments of compensation. She was not therefore seeking merely declaratory relief.
Snell DP said [at 57]:
“Consistent with the notice that was given on 23 March 2020 [in which Ms Lee’s solicitor advised of the further orders that would be sought], the respondent at the hearing…pursued precisely the orders of which it had previously given notice…The orders that were made in the circumstances did not merely consist of a declaration of liability.”
The decision of Arbitrator Harris in De Vries may also be distinguished. In that matter, there was an Application before the Commission contesting the respondent’s denial of compensation. An issue as to whether the applicant was obliged to attend a further medical examination arranged by the respondent arose in those proceedings. Arbitrator Harris was entitled to deal with an interlocutory issue in the proceedings before him. What the applicant is requesting that I do in these proceedings is to deal with what is essentially an interlocutory matter when there is no dispute before me.
It was held in Widdup that the Workers Compensation Commission did not have the power to make a declaration of liability. That case involved proposed hospital and medical treatment, pursuant to section 60 of the 1987 Act.

President Justice Sheahan referred to the decision of the Court of Appeal in Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley and Anor [2006] NSWCA 235. Santow JA, with whom Spigelman CJ agreed, said in that case [at 66]:
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [24ff]. It has no statutory power expressly permitting it to extend the time for the employer to make application under s 145(3). I do not consider that use of the word ‘may’ in s 145(3) does so impliedly; the section is an enabling one so that ‘may’ in effect means ‘must’.”
President Justice Sheahan said [at 35]:
“This Commission is not a court, and does not have any of the powers formally [sic] set out in section 15 of the (repealed) [Compensation] Court Act. In particular, it does not have the power to punish persons guilty of ‘contempt, or of disobedience to any order made’.”
The Commission is also governed by statute. The 2020 Act established the Commission. Section 24 of the Act provides that:
“The Commission has the jurisdiction and functions that may be conferred on it by or under this Act, enabling legislation or any other legislation.”
“Enabling legislation” is defined as the workers compensation legislation and the motor accidents legislation.
There is nothing in the 2020 Act, the 1987 Act or the 1998 Act that confers on the Commission the power to make declaratory orders of the nature sought by the applicant.
I do not accept the applicant’s submission that the guiding principle set out in section 42 of the 2020 Act, that is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings” provides a basis for making the declaration sought.
Section 42(2) of the 2020 Act requires the Commission to seek to give effect to the guiding principle when it (a) exercises any power given to it by this Act or the Commission rules; or (b) interprets any provision of this Act or the Commission rules.
Section 42 does not and cannot confer on the Commission power that it does not have.
I also do not accept the applicant’s submission that he is assisted by section 43(1) of the 2020 Act. Section 43(1) requires that “proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits”. The matter is not properly before the Commission, which does not have the power to make declaratory orders.
I determine that the Commission does not have jurisdiction to make the declaration sought by the applicant.
It is therefore unnecessary for me to determine whether the respondent is entitled to arrange a work capacity assessment under section 44A of the 1987 Act, and the applicant is obliged to attend.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 160

13 April 2022