Thadsanamoorthy v Teys Australia Southern Pty Limited - [2019] NSWWCCPD 61

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCCPD 61
APPELLANT:	Keerthiyaseelan Thadsanamoorthy
RESPONDENT:	Teys Australia Southern Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-285/19
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	29 April 2019
DATE OF APPEAL DECISION:	9 December 2019
SUBJECT MATTER OF DECISION:	Sections 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998; requirement for worker to submit themselves to a medical examination at the request of the employer; the worker resides overseas and is unable to obtain a visa to enter Australia for the purposes of a medical examination in accordance with s 281; whether there is discretion in ss 281 and 282; Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326; 74 NSWLR 229 discussed and applied; adequacy of reasons
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Robert Harrington, Phillip Perry of Counsel
Carroll & O’Dea Lawyers
Respondent:
Geoffrey Walkom, Solicitor
Walkom Lawyers
ORDERS MADE ON APPEAL:	1. The decision of the Arbitrator dated 29 April 2019 is confirmed.

BACKGROUND FACTS

The unchallenged background facts are taken from the Arbitrator’s decision of 29 April 2019.[1]
[1] Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCC 149 (Reasons).
Keerthiyaseelan Thadsanamoorthy (the appellant) was employed by Teys Australia Southern Pty Limited (the respondent). He sustained injury to his left knee on 11 November 2014.
The appellant was an unauthorised maritime arrival, who arrived in Australia on 24 June 2012. A Protection Visa was declined on 14 August 2013 and, after an unsuccessful review by the Administrative Appeals Tribunal, he was deported to Sri Lanka on 2 August 2016.
On 27 March 2017, Arbitrator J Bamber determined:
(a) The appellant sustained injury to his left knee in the course of his employment with the respondent on 11 November 2014.
(b) The incapacity resulting from the injury (was) likely to be of a permanent nature.
(c) That subject to the requirements of s 53 of the Workers Compensation Act 1987 (the 1987 Act), the respondent is to pay the [appellant] payments of weekly compensation at the rate of $646 per week from 2 August 2016 to date and continuing pursuant to s 37 of the 1987 Act.
On 11 September 2017, the appellant was examined by Dr Thomas A Silva in Colombo, Sri Lanka. Dr Silva assessed the appellant’s whole person impairment as a result of the injury to his left knee to be 25%.
On 18 December 2017, the appellant’s solicitors served on the respondent a Permanent Impairment Claim Form, together with a copy of Dr Silva’s report dated 10 October 2017.
On 25 January 2018, the respondent’s solicitors advised that the insurer required the appellant to undergo a medical examination. The solicitors’ letter indicated that their client “would consider paying your client’s travel expenses to return to Australia for an examination if he is able to enter the country.”
On 20 April 2018, the respondent’s solicitor wrote again to reiterate the requirement that the appellant submit himself for medical examination in accordance with s 281 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 24 April 2018 the respondent’s solicitor again wrote to the appellant’s solicitor referring to a letter from the appellant’s solicitor dated 5 April 2018 to the effect that the appellant was unable to obtain a visa to come to Australia.

THE ARBITRATOR’S DECISION UNDER REVIEW

The issues before the Arbitrator were:
“(a) Has the [appellant] provided to the respondent ‘all relevant particulars about the claim’ in accordance with s 281(2)(b) of the 1998 Act by failing to submit himself to a medical examination as requested by the respondent, such that the claim can be properly determined, and a decision made on liability as required by that section?
(b) Has the Application been brought improperly?”
The Arbitrator determined the matter on 29 April 2019. The Respondent made an application to have the Application to Resolve a dispute “struck out”.
The Arbitrator’s determination was as follows:
“1. The [appellant] has not provided the respondent ‘all relevant particulars about the claim’ in accordance with section 281(2)(c) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The Application to Resolve a Dispute is struck out.”

GROUNDS OF APPEAL

The appellant challenges the determination of the Arbitrator as being affected by errors of fact, law and discretion on the following grounds:
“(a) The Commission Arbitrator erred in failing to apply [the] correct statutory construction of sections 281 and section 282 of the 1998 Act, particularly the interaction of the procedural requirements of section 282 with the substantive sections of the 1998 Act and the [1987 Act].
(b)     The Commission Arbitrator unduly restricted the ambit of his discretion in his determination that the Appellant had failed to ‘provide all relevant particulars about the claim’.
(c)     The Commission Arbitrator’s determination that the exercise of his discretion would only be initiated by unconscionable actions of the Respondent was erroneous.
(d)     The Commission Arbitrator erred in respect of the discretionary elements of his judgment.
(e)     The Commission Arbitrator failed to give adequate reasons for his decision.”

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The parties are agreed that the appeal can be decided solely on the basis of the written Application and written Notice of Opposition with the attached submissions.
On 12 November 2019, I issued a Direction requesting further submissions from the parties. Each party has filed supplementary written submissions in response to that Direction.
Having regard to the Practice Directions, the documents that are before me and the submissions of the parties, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD AND PROCEDURAL MATTERS

The appellant’s claim is for lump sum compensation of $55,000 in respect of an injury to the lower extremity resulting in impairment of 25% (25% WPI). As such, s 352(3) of the 1998 Act is satisfied.
On 22 May 2019, the appellant sought to lodge an Application – Appeal Against Decision of the Arbitrator (the Application). The Registrar issued a direction on 24 May 2019 in accordance with Practice Direction Number 6 requiring the appellant to file an Amended Application – Appeal Against Decision of an Arbitrator (Amended Application) on or before 7 June 2019.
That Direction was complied with and an Amended Application – Appeal Against Decision of an Arbitrator was filed on 6 June 2019.
The respondent does not make any complaint that the Appeal has been filed contrary to s 352(4). I proceed on the basis that the proceedings have been commenced within time.

REASONS OF THE ARBITRATOR

The Arbitrator referred to the documentary evidence and noted the following at par [16], amongst other things:
“16.   …
(c)     … Relevant documents in that index will be referred to hereunder. The solicitor advised that she had been unable to obtain specific documentation regarding her client’s departure from Australia and return to Sri Lanka in August 2016 and noted that efforts to obtain such documentation were referred to in the index. The solicitor also observed:
‘Regardless of the above, it would be difficult for our client to meet genuine visitor requirements in an attempt to travel to Australia in accordance with 600.211.
(d)    letter from the solicitor for the respondent to the Arbitrator dated 5 April 2019 referring to the material submitted by the applicant’s solicitor and concluding with the observation that:
‘The material provided does not further advance the Applicant’s claim.’”
There is no evidence as to the precise wording of the direction “600.211”.
The Arbitrator proceeded on the following basis:
“55. … It is not apparent from the evidence as to exactly what ‘600.211’ is; I assume that it is a document from the relevant government department setting out the requirements for the grant of a temporary visa to enter Australia.
56. The respondent notes in its letter to the Arbitrator dated 5 April 2019 (see [16(d)] above) that there is no evidence of the [appellant] having applied for a temporary visa to enter Australia for the purpose of attending a medical examination, and that the material provided by the [appellant] does not further advance his claim.”
The Arbitrator concluded as a practical matter the appellant would not be granted a temporary visa to enter Australia for the purpose of attending the respondent’s medical examination. There is no challenge to that conclusion. In my view, s 354(2) authorises the Commission to act on the basis of the solicitors’ letter dated 27 March 2019.
The Arbitrator commenced his substantive Reasons under an intermediate heading “Discretion”. He then proceeded to analyse the decision of the Court of Appeal in Wattyl Australia Pty Limited v McArthur.[2]
[2] [2008] NSWCA 326; 74 NSWLR 229 (Wattyl).
After referring at length to the reasoning of Beazley JA (as her Honour then was) in that case, the Arbitrator said:
“47. Her Honour held at [99] that the plain reading of Sch 6 Pt 18C(8) of the 1987 Act specified that the procedural provisions of Ch 7 of the 1998 Act had to be complied with. This was in accordance with the judgement of Young CJ in EQ in the case, and of Grove J who agreed with the orders proposed by his Honour on the facts and circumstances of the case as found by him.
48. Grove J held that s 280A of the 1998 Act had to be complied with in order for a claim for work injury damages to be made. This was irrespective of the prospects of success of such a claim …
49. Neither Young CJ in EQ nor Grove J dealt with the discretion of a court to waive compliance with the procedural requirements of the 1998 Act in respect of claims for lump sum compensation or work injury damages as did Beazley JA. They held that the procedural requirements of the 1998 Act had to be complied with.”
Later the Arbitrator said:
“51. Her Honour went on to find, as noted above at [47], that the worker’s claim was governed by the procedural provisions of the 1998 Act, and that the claimant’s appeal against the dismissal of its motion by Balla DCJ should be upheld.
52. My view is therefore that the [appellant] does not gain any assistance from the decision in Wattyl, which makes it quite clear that the procedural provisions of the 1998 Act must be complied with in respect of a claim for, in this case, lump sum compensation. Sections 281 and 282 of the 1998 Act are all contained in Division 4 of Part 3 of Ch 7 of the 1998 Act – ‘Claims for Lump Sum Compensation and Work Injury Damages’, which also includes s 280A, the subject of proceedings in Wattyl. I find that there is no discretion to waive compliance with the procedural requirements for making a claim for lump sum compensation.
53. If I am wrong in this finding, for the reasons highlighted by Beazley JA at [88] in Wattyl … I cannot see any conduct on the part of the respondent that would be relevant to the exercise of a discretion to waive compliance by the [appellant] with the procedural requirements of the 1998 Act in respect of his claim for lump sum compensation.”
Thereafter, on the hypothetical basis that there was a discretion to be exercised, the Arbitrator considered a number of matters going to the exercise of that discretion. He noted the following:
(a)    The employer promptly advised of the requirement for a medical examination and offered to cover travel expenses.[3]
(b)    The worker was unlikely to be able to obtain a temporary visa to enter Australia for the purpose of the medical examination.[4]
(c)    There was no evidence that the worker had applied for a temporary visa to enter Australia for the purpose of attending a medical examination.[5]
(d)    There were matters arising from Dr Pillemer’s report highlighting numerous mistakes in Dr Silva’s report dated 10 October 2017 and there were differences in the ranges of movements recorded by the doctors who examined the appellant from January 2016 (Drs Mamo, Rohrsheim and Ryan).[6]
(e)    The submission from the respondent that the worker’s failure to inform the employer of the proposed claim for lump sum compensation was a fact mitigating against the exercise of discretion to excuse the appellant from undergoing the medical examination as requested by the respondent.[7]
[3] Reasons, [54].
[4] Reasons, [55].
[5] Reasons, [56].
[6] Reasons, [57].
[7] Reasons, [58].
For those reasons the Arbitrator, on the hypothetical basis that there was a discretion to be exercised concluded that he would in the event have exercised the discretion against the worker’s application.
Thus, the Arbitrator held:
(a) There was no discretion to waive compliance with the procedural requirements for making lump sum compensation.[8]
(b) If, contrary to that conclusion, there was a discretion, he would not have exercised it in favour of the appellant.[9]
[8] Reasons, [52].
[9] Reasons, [59].
The Arbitrator proceeded to strike out the application because the (appellant) had not provided the respondent with “all relevant particulars about the claim” as required by s.281(2)(b). I assume he adopted this course rather than simply staying the proceedings until the particulars were provided because it was apparent to him and the parties that the (appellant) would not be able to remedy the default. The appellant does not complain of the form of order made by the Arbitrator.

JURISDICTION OF THE APPEAL

The appeal is brought pursuant to s 352(1) of the 1998 Act. The jurisdiction is constrained by s 352(5) as follows:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”
For the reasons that follow, in my view the appellant has not made out an error of fact, law or discretion on the part of the Arbitrator. It follows that, in my view, the appeal should be dismissed.

SUBMISSIONS

Appellant’s submissions

Grounds (a)–(e)

The appellant has provided compendious submissions in relation to grounds (a) to (e).
The appellant submits:
“11. The Commission Arbitrator’s statutory construction is, it is submitted, inconsistent with the ‘system objectives’ in section 3 of the 1998 Act, particularly subclause (c) which nominates an objective that ‘necessary medical and vocational rehabilitation’ be provided to assist injured workers and to ‘promote their return to work as soon as possible’.”
The appellant then sets out passages from Wilson v State Rail Authority of New South Wales,[10] where Allsop P (as his Honour then was) quoted at length from Project Blue Sky Inc v Australian Broadcasting Authority.[11] Following the quoted passages, the appellant says:
“13. Applying the guidance provided by the Court of Appeal to the question as to whether the Appellant’s inability to comply with s 282(2) [of the 1998 Act] is fatal to his entitlements to compensation, the Appellant makes the following submissions.”
[10] [2010] NSWCA 198 (Wilson), [13].
[11] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
In summary those submissions are as follows:
(a)    The Arbitrator’s decision effectively ousted the jurisdiction of the medical assessors.[12]
(b)    There being no issue as to injury or as to the level of impairment as a result of that injury, the jurisdiction of the Workers Compensation Commission was exhausted, and the remaining issues were matters which were exclusively within the purview of the medical assessors.[13]
(c)    The system is non-adversarial.[14]
(d)    The utility of the examination of the appellant by a doctor qualified on behalf of the respondent would be to “justify acceptance of the appellant’s claim if the respondent’s doctor agreed with the appellant’s doctor” but as it was unlikely that there was ever going to be agreement as to the level of impairment the matter would have to be referred to an AMS in any event.[15]
(e) Section 282(2) of the 1998 Act is purely procedural in its nature. Further, it is submitted, the section is an inconsequential procedural requirement. In the circumstances, s 282(2) is, it is submitted, a subordinate provision. The provisions dealing with the appellant’s entitlement to weekly compensation, lump sum compensation and entitlement to bring a work injury damages claim are leading provisions and a subordinate provision should never be allowed to override entitlements under the workers compensation legislation, particularly where the inability to comply with the procedural requirements is not the fault of the appellant. The aim of the workers compensation legislation is to provide fair compensation to workers who are injured and a strict interpretation of s 282(2) by the Commission Arbitrator defeats that overriding purpose (s 3 of the 1998 Act, “System objectives”).[16]
(f)    The discretion referred to by Beazley JA in Wattyl was limited by the Arbitrator to “a discretion which can only be exercised following an examination of the behaviour of the parties.” The discretion referred to by Beazley JA, it is submitted, is much wider than that and extends to situations where gross injustice would result from the literal interpretation of a statute or the failure to rank statutes in order of priority depending on their importance. Discretion should be exercised in this instance to remedy the injustice not the behaviour of the party.”[17]
(g)    The Arbitrator’s assertion that he was constrained by the decision in Wattyl to dismiss the appellant’s claim for lump sum compensation is with respect too narrow an application of this decision. The procedural breaches in Wattyl were substantive. There is no evidence that the claimant had an impairment of 15% and the claimant had not engaged in the numerous administrative requirements of work injury damages claims. In this case the only impairment to the appellant’s entitlements is an inconsequential medical examination.[18]
(h)    If the dispute is defined widely as to whether the appellant is entitled to lump sum compensation then it is submitted that the respondent is in breach of its obligations as referred to in s 285 of the 1998 Act.
[12] Appellant’s submissions, [14].
[13] Appellant’s submissions, [15].
[14] Appellant’s submissions, [16].
[15] Appellant’s submissions, [17].
[16] Appellant’s submissions, [18].
[17] Appellant’s submissions, [20].
[18] Appellant’s submissions, [21].
The appellant then makes additional submissions in respect of grounds (b) to (e) at pars [25] to [29]. These submissions in summary are:
(a)    The Arbitrator’s decision is determining a medical issue based on adversarial considerations. The intention of the medical assessment system is to remove adversarial assessment of the whole person impairment.[19]
(b)    The Commission Arbitrator did not explain why he came to a conclusion that if there had been a discretion he would not have exercised it in favour of the appellant. In particular the Arbitrator failed to exercise a discretion having regard to the severe prejudice that the appellant suffered as a result of his determination.
(c)    No reasons were given as to why the Arbitrator would decline to exercise the discretion in the appellant’s favour. The Arbitrator did not consider or give reasons in respect of the effect of his decision on the substantive rights that the appellant would lose as a result of the determination.[20]

Respondent’s submissions

[19] Appellant’s submissions, [25].

[20] Appellant’s submissions, [28]–[29].

Ground (a)

The respondent’s primary submission in relation to ground (a) is that:
“10. The [appellant’s] submission appears to be that the Arbitrator in the circumstances was required to ignore the clear words of the legislation, as to do otherwise would deprive the Appellant of his substantive rights under the legislation.”
The respondent refers to the decisions of Wilson and Cross v Secretary, Department of Education.[21] It says of those decisions that they were directed to the circumstances of a particular provision in each case. In Cross, the meaning of the provision was uncertain and in Wilson there was a conflict in the operation of the provisions. The respondent submits that in the present matter neither circumstance is present[22] and it submits:
“17. In this appeal the provisions relied upon by the Respondent and used as the basis of the Arbitrator’s determination are clear in their meaning and intent. They do not conflict with the substantive provisions but set a pathway for a claimant to establish an entitlement to a claim under those substantive provisions. The Arbitrator was correct to accept that there was no discretion to ignore those provisions because of a perceived injustice arising from the Appellant’s particular circumstances presently being out of the jurisdiction.”
[21] [2019] NSWWCCPD 20 (Cross).
[22] Respondent’s submissions, [11].
The respondent refers to ADCO Constructions Pty Limited v Goudappel[23] and to Wattyl at [85] and says the passages quoted from the judgement of Beazley JA are obiter (with the intent presumably, to base a submission that the Commission is not bound to follow the dicta):
“21. Whilst Her Honour later made reference in that case to [there] being a discretion to strike out a claim wrongly commenced, it is submitted those comments were obiter (and in a particular context that will be expanded on later in these submissions) and the Arbitrator correctly found the ratio of that decision was that the procedural requirements of the 1998 Act had to be complied with.”
[23] [2014] HCA 18, [29].

Grounds (b)–(d)

The respondent addresses appeal grounds (b), (c) and (d) compendiously saying the passage from Beazley JA in Wattyl (at [88]) needs to be viewed “in the context of her Honour finding the proceedings were maintainable, and that it was incumbent on the defendant to raise the non-compliance in response to the proceedings.”[24]
[24] Respondent’s submissions, [24].
It then submits:
“25. Her Honour’s comments make it clear that in the setting of the same legislative scheme, and whilst not limiting the Court’s discretion, the focus of the exercise of that discretion should not be on any perceived injustice to the Appellant, but rather the manner and timing in which the non-compliance was raised by the employer.”
In paragraphs [26]–[29] the respondent supports the hypothetical exercise of the discretion adverse to the appellant as being correct.

Ground (e)

The respondent’s submission in relation to ground (e) which relates to the adequacy of the Arbitrator’s reasons is:
“32. The Arbitrator’s reasons are far from meeting the test of being so inadequate as to amount to a miscarriage of justice. At paragraphs 53 to 58 he outlines the various balancing issues he considered on the ‘discretionary issue’. He was clearly alert to the Appellant’s position as to the practical consequences of striking out the application, having referred to these in summarising his Counsel’s submissions.”

Further ground – Jurisdiction

Under the heading “Further Ground-The Arbitrator had no jurisdiction” the respondent deals with a point raised by the appellant as to the Arbitrator’s jurisdiction. It deals with the point at paragraphs [33] to [41] of its submissions on several bases, namely:
(a)    The point was not taken at the hearing.[25]
(b)    The appellant limited the issue for determination as being “a discretionary matter”.[26]
(c)    Sub-section 289(3) makes it clear a dispute in respect of lump sum compensation cannot be referred to the Commission for determination unless the respondent has either disputed liability, made an offer of settlement or failed to determine the claim as required. None of these grounds are met.[27]
(d)    Further, pursuant to sub-section 288(2) of the 1998 Act the Registrar of the Commission has limited powers.
(e)    The Arbitrator was not determining a medical dispute.

Appellant’s submissions in reply

[25] Respondent’s submissions, [34].

[26] Respondent’s submissions, [35]–[36].

[27] Respondent’s submissions, [37].

Ground (a)

The appellant has provided further submissions in reply in relation to ground (a), in summary:
(a) The appellant’s inability to comply with the procedural requirements of s 282(2) was not the fault of the appellant.[28]
(b) Section 282 is designed to achieve the object of the Act. Its interaction with s 281 extends the time available for an employer to determine lump sum compensation “until such time as the relevant particulars as set out in the section are provided.”[29]
(c)    The interpretation adopted by the Arbitrator is “the antithesis of the achievement of the object of the Act”.
(d)    The appellant points out:
·the appellant sustained employment injury to his left knee,
·as a direct consequence of that injury the appellant has been obliged to undergo three surgical procedures on his left knee, and
·a medical practitioner in this case a Consultant Orthopaedic Surgeon duly qualified to make the assessment in accordance with the Act and Regulations has provided an opinion to the effect that the injury and subsequent surgical procedures have resulted in the appellant having sustained a 25% whole person impairment.
(e)    “The object of the Act would be achieved by the appellant being assessed by an independent approved medical specialist (AMS) appointed by the Commission. If the AMS were to certify that the WPI were in excess of 10%, then, subject to any appeal from that certificate, the appellant would have an entitlement to the benefit of the lump sum provisions.”[30]
[28] Appellant’s submissions in reply, [1].
[29] Appellant’s submissions in reply, [4].
[30] Appellant’s submissions in reply, [6].
The appellant then refers to Commonwealth v Mewett[31] and to Berowra Holdings Pty Limited v Gordon[32] at [338]. He then makes the following submission:
“9. The correct approach, and the one which the Arbitrator declined to adopt, was to accept that he indeed had a discretion (see Berowra Holdings Pty Limited v Gordon (2006) CLR 364 at [38]) and then to exercise that discretion in favour of the appellant, since to do otherwise would be to defeat the substantive provisions of the legislation.
10. It is to be noted that section 282 is designed to enable the insurer as far as practicable, to make a proper assessment of the applicant’s entitlement on the claim (emphasis added).”
[31] (1997) 191 CLR 471.
[32] [2006] HCA 32; 225 CLR 364 (Gordon).
Later:
“14. The employer or insurer might arguably be inhibited in their capacity to make the determination required by s 281. But this is the limit of the work that s 282 has to do, and the Arbitrator was in error considering otherwise. Section 282’s provisions are manifestly directed to nothing more than the requirement of an employer or insurer to determine whether to accept or contest a lump sum claim. The provisions do not purport to impact on a worker’s entitlement to compensation in an applicable case. In failing to observe this, the Arbitrator has fallen into error, as was pointed out in principal submissions.”

Ground (b)

The appellant’s further submissions provide:
“18. … The absence of an examination of the appellant by the respondent’s medical practitioner was not the result of a waiver of that entitlement by the defendant. But it was, and was accepted to be, the result of circumstances beyond the control of the worker. There was practical protection for the employer available, in that the extent of the appellant’s whole person impairment, if any, would be determined by an AMS independent of the worker. That AMS would form his opinion based on an examination of the worker including relevant measurements of any restrictions in movement, measurements made by the AMS. The AMS would have access to reports radiology and surgical reports.
19. Thus, as far as practicable, to borrow the term from s 282, a just outcome would be achieved.”

Ground (c)

The appellant asserts in relation to the discretion:
“23.   The section manifestly did not provide that a worker’s entitlement to lump sum compensation was negated if that worker were unable to attend an examination.
24.    If there were no discretion as posited by the Arbitrator [52], then no matter what the circumstances were that inhibited a worker’s ability to attend [an] employer’s medical examination, that worker would lose his or her entitlement.
25.    Thus, His Honour erred (1) in determining that he had no discretion and (2) further … in determining that, even if he had a discretion, that discretion was limited to circumstances in which the employer had induced the worker’s non-compliance with procedural requirements.
26.    The respondent submits at [27] that the Arbitrator canvassed more bases than the respondent’s contact [sic] for the exercise of the discretion in favour of a worker. This submission is incorrect. At [55] to [58] the Arbitrator simply expanded on his comment at [53].”

SUPPLEMENTARY SUBMISSIONS IN RESPONSE TO THE DIRECTION DATED 12 NOVEMBER 2019

The parties were asked to provide submissions on whether it was common ground that the appellant would be denied entry to Australia to attend a medical examination. The parties’ respective positions and the manner in which the Arbitrator proceeded are set out at [25] above.
The parties were also asked in relation to s 282(2) did the medical practitioner have to be qualified to practise in New South Wales? Would a medical practitioner qualified in practising in a foreign jurisdiction satisfy the requirements of s 282(2)? The appellant submitted that the medical practitioner did not have to be qualified in New South Wales. Further, that the medical practitioner could be qualified in a foreign jurisdiction.
The respondent submitted that the medical practitioner had to be registered under the Health Practitioners Regulation National Law and that required a practitioner to be qualified under the law in a medical profession.
The respondent submitted that, in addition, the health practitioner had to be qualified under the Workers Compensation Guidelines.
The parties were asked to make submissions on whether the requirement that the appellant “submit himself … for examination” meant that the appellant must be present in New South Wales or can he submit for examination in Sri Lanka.
The appellant submitted that “if the employer were to provide and pay for an examination in Sri Lanka, and the appellant presented himself for that examination, the appellant would have complied with s 282(2).” The respondent submitted to the contrary having regard to s 12 of the Interpretation Act1987 and to the decision of Wesfarmers General Insurance Limited v Nestel.[33]
[33] [2011] NSWDC 224.
The parties were asked to make submissions on whether the obligation on the employer to provide and pay for the medical practitioner who examines the appellant extends to a requirement that the employer provide for a medical practitioner to examine the appellant in Sri Lanka or some other venue convenient to the parties.
The appellant submitted that “If an employer arranges an examination which it is possible for the worker to attend, then clearly there is an obligation on the worker to attend that examination if he/she seeks to proceed with a claim. Conversely, an employer may choose to decline the opportunity of having a worker examined.” The appellant noted that enquiries by its solicitors have revealed that a medical practitioner practising in Colombo has been qualified pursuant to icare Guidelines to assess whole person impairment.
The respondent’s submissions on this point are that the medical examination is required to take place in New South Wales and the employer does not have an obligation to provide for a medical practitioner to examine the appellant in Sri Lanka or some other venue to which the appellant may be able to travel.

CONSIDERATION

Ground (a) – statutory construction of ss 281 and 282 of the 1998 Act

Relevantly, the construction of s 281 and s 282 of the 1998 Act requires a consideration of the text of the provisions, the context in which they appear and the purpose they are intended to serve.[34]
[34] Project Blue Sky, [69]–[70].
Section 281 of the 1998 Act relevantly provides:
“281 Liability to be accepted and settlement offer made
(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by—
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined—
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.”
Sub-sections (2A) to (6) need not be noticed.
Section 282 of the 1998 Act provides:
“282 Relevant particulars about a claim
(1)     The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim—
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the Workers Compensation Guidelines may require.
(2)     If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.
(3)     The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.
(4)     In this section, injury is not limited by the meaning given by section 4.” (emphasis in original)
Section 3 of the 1998 Act provides for the system objectives. It provides:
“The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives—
…
(c)     to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, payment for reasonable treatment and other related expenses,
(d)     to be fair, affordable and financially liable,
(e)     to ensure contributions by employers are commensurate with the risk faced, taking into account strategies and performance in injury prevention, injury management and return to work.”
Sections 281 and 282 appear in Division 4 of Part 3 of Chapter 7 of the 1998 Act.
Part 3 creates a regime for the payment of compensation benefits. Division 1 relates to weekly payments, Division 2 makes further provision with respect to weekly payments, Division 3 relates to medical expenses, Division 4 to lump sum payments and Division 5 to enforcement of obligations arising under these provisions.
It is evident from the text of s 281 that the provision is intended to promote the early determination of liability and assessment of claims for lump sum compensation. To facilitate that objective s 282 requires the claimant to provide “relevant particulars about the claim … sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim”. The emphasis is on providing information to the insurer to enable it to make an expeditious and early determination of liability and, if liability is accepted, to make an early and reasonable offer of settlement.
Sub-section 282(2) facilitates that purpose by directing that the employer can have the claimant examined. This is intended to provide a mechanism whereby the insurer can inform itself as to the impairment if any. The intent is to avoid referral to an AMS and to enable the parties to resolve medical disputes. Until such time as the claimant submits for examination “the claimant is not considered to have provided all relevant particulars about the claim”.
The failure to supply the particulars, including attendance at a medical examination, engages s 281(2)(b).
The text of s 281 and s 282 does not permit of a discretion. The language reposes such discretion as may exist in the insurer in the sense that the option provided is for the insurer to have the claimant examined or not examined. There is no option provided for a claimant for lump sum compensation not to be examined if the employer requires the claimant to submit for examination.
In Gordon, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said:
“15. In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party. Generally, there is in law no restriction upon a person’s right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.
16. None of the above denies the possibility of a defendant denying the plaintiff’s right to invoke the jurisdiction of the court, for example where the plaintiff’s right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it …”.
When the procedural law is engaged a party is put to a choice. Under the provisions of the 1998 Act, when the appellant made a claim for lump sum compensation the insurer was put to a choice as to whether it wished to have the appellant medically examined. It chose to do so and by virtue of s 282(2), until such time as the appellant was medically examined, he was “not considered to have provided all relevant particulars about the claim” thus postponing the period of time during which the insurer was required to determine the claim in accordance with s 281(1).
Because the claimant could not attend in Australia for the proposed medical examination, the “relevant particulars” were not furnished. Therefore the time within which the insurer was required to determine the claim as specified in s 281(2)(b) did not commence to run.
Compliance with s 281(2)(b) is mandatory on the insurer only in so far as it is provided with “all relevant particulars about the claim”. It is up to the insurer to determine whether it wishes to have the claimant medically examined. If it does so, there is no discretion in the Commission to override the insurer’s requirement in this regard.

In Wattyl the Court held that the worker was required to comply with the pre-trial procedures. The appellant’s position in this matter is similar. The Court will enforce procedural compliance if the insurer insists as the reasons for judgement of Beazley JA in Wattyl make plain:
“89. The claimant also made it apparent, at least in its argument on the appeal, that it seeks compliance with all of the pre-trial procedures prescribed by the [1998 Act]. In those circumstances, subject to the consideration of the opponent’s argument that his claim was not governed by the legislation at all, I am of the opinion that the trial judge wrongly exercised her discretion in dismissing the opponent’s motion.”
In the same case Young CJ in Eq said:
“158. I consider that it is impossible to construe the [1998 Act] in the way the opponent suggests. The provision which have [sic] been set out seem to me to indicate that there are a closed number of categories of claims that can be considered and that these must be considered under the procedural provisions of the legislation whether or not they occurred after the passing of the 2001 amendments.”
Likewise, Grove J said:
“191. The inhibitory words of s 280A do not operate only if the injured worker can be perceived to have a claim for lump sum compensation which will succeed. The provision requires the making of a claim not the demonstration of an entitlement. If a claim for work injury damages is desired to be pursued in respect of an injury then it cannot be made unless a claim for lump sum compensation is made in respect of the injury before or at the same time. It is conceivable that a claim for lump sum compensation may ultimately fail, for example, by reason of a subsequent finding that the resulting impairment was not permanent, but the unambiguous words of the provision require the claim to be made. Its operation is not dependent upon the determination of the claim.” (emphasis in original)
In Wattyl the Court of Appeal granted leave to appeal and allowed the appeal. It thereby reversed the finding of the primary judge that non-compliance with s 280A could be excused. The only member of the Court to discuss whether there was a discretion to excuse non-compliance was Justice Beazley. Her Honour’s conclusions[35] were based on her analysis of the binding ratio in Gordon. The point is that when a party invokes by way of defence non-compliance with the procedures and processes specified in the legislation the court deals with such an application[36] “in accordance with ordinary discretionary principles that may depend on many different factors”.
[35] Wattyl, [87]–[88].
[36] Ibid.
In my view, there is no alternative in terms of the construction of s 282(2). If the insurer insists on an examination, the worker is required to submit. Until such time as he does, the relevant particulars have not been furnished.
In my view, there is nothing that would prevent the insurer from having the examination conducted by an appropriately qualified medical practitioner in Sri Lanka or some other venue to which the appellant could conveniently travel. Furthermore, I see no reason why the insurer could not, as the worker did, have a New South Wales practitioner travel to Sri Lanka for the purpose of the examination. However, I can see no basis in the legislation to require an insurer to take these steps to facilitate its examination.
A reasonable construction of s 282(2) requires the medical practitioner to be a suitability qualified health practitioner practising in New South Wales or at least Australia and trained in the Workers Compensation Guidelines. This in my view follows from the guidelines themselves.
The Workers Compensation Guidelines October 2019, and as I understand it prior to that time, provide in 7.2:
“All independent medical examiners must be appropriately qualified medical practitioners with the expertise to adequately respond to the question(s) outlined in the referral. They must have qualifications relevant to the treatment of the worker’s injury.
If the referral includes a question of causation or treatment, the independent medical examiner is to be in current clinical practice or have recently been in clinical practice or undertake professional activities such that they are well abreast of current clinical practice.
7.2.1 Permanent Impairment Assessors
If the referral is for an assessment of permanent impairment, the referral must be to a specialist medical practitioner with qualifications, training and experience relevant to the body system being assessed.
The assessor must have successfully completed training and be listed on the SIRA website as a trained assessor of permanent impairment with SIRA workers compensation.”
In my view, the respondent’s further written submissions [7] to [13] summarised at paragraphs [55] and [56] above should be accepted.

Grounds (b) to (d) – Discretion

Oversimplifying, these three grounds of appeal relate to the manner in which the Arbitrator undertook hypothetically to exercise the discretion in the event that he was wrong in his conclusion that such a discretion did not exist.
If, contrary to the Arbitrator’s and my view, there is a discretion to, in effect, excuse the claimant from attending for medical examination when required to do so by the insurer, then any such discretion is a judicial discretion. A judicial discretion must be exercised for the purpose for which it is provided under the empowering statute and for reasons clearly expressed and in accordance with the statutory purpose.
The purpose of the statute is to provide for the prompt payment of compensation in appropriate cases. The purpose of ss 281 and 282 of the 1998 Act is to inform the insurer so that it is able to make a speedy and correct determination as to whether to accept or deny liability and, if liability is accepted, to make an offer of settlement; and, if liability is denied, to cause the matter to come for assessment by an approved medical specialist.
Contrary to the appellant’s submission, the Arbitrator did not confine himself solely to a consideration of whether the respondent had engaged in disentitling conduct.
The Arbitrator addressed that issue concluding that there was nothing in the conduct of the respondent that would be relevant to the exercise of a discretion to waive compliance by the appellant with the procedural requirements[37] but that was not the only consideration he embraced.
[37] Reasons, [53].
He made clear that in his opinion the insurer had stated its requirement that the appellant should undergo a medical examination. The insurer had agreed to cover the travel expenses for a return to Australia for that purpose.[38]
[38] Reasons, [54].
The Arbitrator accepted that the appellant would not be able to obtain a temporary travel visa for the purpose of attending a medical examination, but that in any event there was “no evidence of the [appellant] having applied for a temporary visa to enter Australia for the purpose of attending a medical examination, and that the material provided by the [appellant] does not further advance his claim.”[39]
[39] Reasons, [56].
The Arbitrator accepted that an examination was relevant having regard to the matters raised by Dr Pillemer[40] in his report and the differences in movement recorded by the doctors who examined the appellant in January 2016. Dr Pillemer recorder that the report from Dr Silva contained what Dr Pillemer perceived to be numerous mistakes.
[40] Reasons, [57].
Finally, there was the issue of the appellant’s failure to inform the insurer of the proposed claim for lump sum compensation, presumably before he was deported from Australia on 2 August 2016. It is plain that the appellant was examined by doctors before he was deported.[41]
[41] Reasons, [57]–[58].

Ground (e) – as to Reasons

In my view, the reasons expressed by the Arbitrator both as to why there was no discretion and on the hypothetical possibility that there was a discretion, satisfy the requirement for reasons in the context of the Workers Compensation Commission.
In Beale v GIO of New South Wales,[42] Meagher JA said:
“No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons which it is useful to consider. First a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered … Secondly a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Thirdly a judge should provide reasons for making relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.”
[42] (1997) 48 NSWLR 430, 443 (Beale).
The appellant’s complaint concerning the Arbitrator’s reasons is that he gave no reasons as to why he would decline to exercise his discretion in the appellant’s favour and he did not consider or give reasons in respect of the effect of his decision on the substantive rights that the appellant would lose as a result of his determination.
Importantly, having regard to Beale there is no complaint that the Arbitrator failed to consider the relevant evidence or that he did not set out the material findings or ultimate findings of fact he relied on for his decision. (There was of course no relevant dispute as to the evidence or the material findings of fact and accordingly very little requirement for reasons to be given for making relevant findings of fact.)
Furthermore, the grammatical meaning of ss 281 and 282 is straight forward and without ambiguity. The Arbitrator gave clear expression to his reasons for finding that he did not have a discretion to excuse the appellant from attending for medical examination. As set out above at pars [85] to [93] he gave cogent reasons why, if contrary to his view he had such a discretion as contended for, he would not have exercised it in the appellant’s favour.
I do not see that proper and adequate reasons required the Arbitrator to make express reference to the present consequence for the appellant’s substantive claim. This would not add to the appellant’s understanding of the reasons for his lack of success or to an understanding of the reasoning for the purpose of appellate review.
In my view, the Arbitrator’s statement of reasons satisfies the three fundamental requirements for a statement of reasons specified in the passage from Beale above. There is no failure to provide appropriate reasons and this ground of appeal is rejected.

Jurisdiction

The appellant purports to raise an issue as to whether the Arbitrator was precluded from determining the matter by reason of the exclusive nature of the medical assessment provisions. It is asserted in the appellant’s submissions that the Arbitrator was in effect performing a medical function.
In my view this point:
(a)    was not argued before the Arbitrator;[43]
(b)    is not raised in the grounds of appeal, and
(c)    should in any event be rejected.
[43] University of Wollongong v Metwally (1983) 59 ALJR 48.
Contrary to the appellant’s submissions at [14] and [15], the issue determined by the Arbitrator was the proper construction of ss 281 and 282 of the 1998 Act. That was expressly the issue for determination identified by the Arbitrator and said to be the issue agreed by the parties as remaining in dispute (see the Arbitrator’s Reasons at [12]).
Section 105 of the 1998 Act confers, subject to the Act, exclusive jurisdiction on the Commission “to examine, hear and determine all matters arising under this Act and the 1987 Act.” In my view, the Arbitrator exercised the jurisdiction conferred by s 105.
I reject the appellant’s submission that the Arbitrator “effectively” or otherwise ousted the jurisdiction of the medical assessors. Further, I reject the submission that the issue was “exclusively within the purview of the medical assessors.”

CONCLUSION

In my view, the grounds of appeal have not been made out. The decision is not affected by error of fact, law or discretion.

DECISION

The decision of the Arbitrator dated 29 April 2019 is confirmed.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

9 December 2019