University of New South Wales v Lee
[2021] NSWPICPD 4
•29 March 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | University of New South Wales v Lee [2021] NSWPICPD 4 |
| APPELLANT: | University of New South Wales |
| RESPONDENT: | Ida Lee |
| INSURER: | Self-insured |
| FILE NUMBER: | A2-1340/20 |
| MEMBER: | Mr B Batchelor |
| DATE OF MEMBER’S DECISION: | 15 September 2020 |
| DATE OF APPEAL DECISION: | 29 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – section 119 of the Workplace Injury Management and Workers Compensation Act 1998 – suspension of benefits due to alleged non-compliance – application of Workers Compensation Guidelines (Parts 7.1 and 7.7) – alleged factual error – alleged procedural unfairness |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Respondent: | |
| Mr C Tanner, counsel | |
| McNally Jones Staff | |
| ORDERS MADE ON APPEAL: | 1. Leave is granted to the University to amend its grounds of appeal to add a further ground, Ground No. 6. 2. The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
This matter arises out of a claim for weekly compensation and treatment expenses by Ida Lee (the respondent) in respect of psychological injury in the course of her employment with the appellant, the University of New South Wales (the University). The deemed date of injury was 8 January 2020. The University accepted liability on a provisional basis pursuant to s 267 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1] On 10 February 2020, the University informed the respondent that it had arranged for her to be examined by an Independent Medical Examiner (IME), Dr Miller, psychiatrist, on 18 March 2020. The stated reason for this was that “Clinical notes requested from Broadway General Practice, Dr John Cosgriff have not been received. Therefore, information from treating medical practitioner(s) is unavailable.” There was reference to areas of inquiry to which the information was said to be relevant.[2]
[1] Miscellaneous Application (MA), pp 1–3.
[2] MA, pp 4–6.
On the same date the respondent’s solicitors informed the University by email that “the requirement to attend is considered unreasonable”. The email said “according to the doctor’s rooms, your request was only received last week and the tax invoice for the provision of the notes was forwarded to you this morning. Simply pay the tax invoice and you will have the notes …”. There was reference to s 119 of the 1998 Act and the Guidelines referred to in that section.[3] By email dated 17 February 2020, the University asserted that the arrangement for the IME was “in accordance with the guidelines”. It threatened that failing attendance, payments would be “suspended in accordance with s 119(3)”.
[3] MA, p 7.
The respondent’s solicitors replied on 6 March 2020, maintaining that the examination did not comply with the Guidelines, “the information you have apparently sought is available. All you have to do is pay the tax invoice”. It was also stated that the University had not complied with “the final phrase of the first paragraph of 7.1 of the Guidelines … my client will not be attending the appointment.” On the same date the University responded that it was “not bound by guidelines” and that it was “in compliance with” them. It said compensation would be suspended if the respondent failed to attend.[4]
[4] MA, pp 9–11.
On 23 March 2020, the University issued a notice pursuant to s 119(3) of the 1998 Act suspending payment of weekly benefits “as you have refused to submit yourself for examination by a medical practitioner, provided and paid for by your employer”. It said the weekly payments were suspended “until the examination has taken place”. It simultaneously gave notice of a further appointment, with the same medicolegal psychiatrist, arranged for 7 May 2020. The respondent’s solicitors responded by email on 23 March 2020, drawing the University’s attention to Pt 7.7 of the Workers Compensation Guidelines, and advising that orders would be sought in the Commission that the suspension was unreasonable, that payments be reinstated from the date of the suspension, and that interest be paid.[5]
[5] Application to Admit Late Documents, 30.3.20, pp 1–6.
The proceedings came before Arbitrator Rimmer for telephone conference on 7 April 2020. They were not concluded on that date. The respondent’s solicitor made oral submissions. The solicitor appearing for the University was not ready to make submissions as he did not have carriage of the matter. The Arbitrator indicated she considered the matter to be urgent and ordered that the University’s written submissions be lodged by 9 April 2020. On 8 April the University’s solicitor requested a transcript so that he could prepare submissions.[6]
[6] University of New South Wales v Lee [2020] NSWWCCPD 33 (Presidential decision), [9]–[10].
On 9 April 2020, the University lodged an Application to Appeal to a Presidential member, which was rejected for procedural reasons. On 14 April 2020, Arbitrator Rimmer issued a Direction in which she noted that Mr Macken, solicitor for the University, now sought to make submissions on the University’s behalf, and that the telephone conference before her had not been recorded. She ordered that written submissions be lodged, by the respondent by 17 April 2020 and by the University by 22 April 2020. On the same date the University successfully lodged an Application to Appeal. The appeal was expedited and was dealt with by Deputy President Wood in a decision dated 28 May 2020.[7]
[7] Presidential decision, [11]–[14].
The orders challenged in the Presidential appeal were of an interlocutory nature. The appeal required leave to proceed pursuant to s 352(3A) of the 1998 Act. Deputy President Wood rejected a number of the University’s submissions regarding what applications had been made at the telephone conference before Arbitrator Rimmer.[8] The Deputy President declined to grant leave to appeal the interlocutory orders. The matter was remitted to Arbitrator Rimmer for determination.[9] The University, in written submissions that were lodged before Arbitrator Rimmer on 22 April 2020, had sought that the Arbitrator disqualify herself on the basis of apprehended bias. In a Certificate of Determination dated 3 June 2020 Arbitrator Rimmer acceded to that application and ordered the matter be reallocated to another Arbitrator.
[8] Presidential decision, [48]–[52].
[9] Presidential decision, [69]–[70].
The matter was allocated to Arbitrator Batchelor, and an arbitration hearing was held on 19 August 2020. Mr Brennan appeared for the respondent and Mr Saul of counsel appeared for the University. The legal representatives addressed, there was no oral evidence, and the matter was reserved. A Certificate of Determination was issued on 15 September 2020.[10] The Arbitrator found that the respondent was not obliged to undergo the medical examination arranged by the University, and that the University was not entitled to suspend the provisional weekly payments in the circumstances. It was ordered the provisional payments be reinstated from 18 March 2020 for the balance of the maximum period of 12 weeks. The Arbitrator declined an application by the respondent for interest.
[10] Lee v University of New South Wales [2020] NSWWCC 325 (reasons).
THE ARBITRATOR’S REASONS FOR DECISION
The Arbitrator identified an issue raised by the University, that the Commission lacked jurisdiction to deal with the matter because the only relief sought by the respondent was of a declaratory nature. Reference was made to Water Taxis Combined Pty Limited and Harbour Taxi Boats Pty Limited v Wells,[11] as authority that the Commission lacked declaratory powers.[12] The Arbitrator referred to arbitral decisions relied on by the parties,[13] and said these did not assist with the jurisdictional issue.[14] He referred to the orders sought by the respondent in the Miscellaneous Application:
“An order that the proposed IME with Dr Miller on 18 March 2020 does not comply with [the 1998 Act] [s]ection 119 or the Guidelines and thus the provisions of [s]ection 119(4) apply.”
[11] [2004] NSWWCCPD 30 (Wells).
[12] Reasons, [21].
[13] Taylor v State of New South Wales [2020] NSWWCCR 5, Grant v Department of Lands – Land and Property (20.4.2009; 1136/09).
[14] Reasons, [38]–[44].
The Arbitrator referred to the submissions in support of the Application, which referred to s 119(4) and Pt 7.1 of the Guidelines. He referred to the respondent’s submission that the University simply needed to pay the tax invoice and Dr Cosgriff’s notes would be provided, the “information was neither inadequate, unavailable or inconsistent”. The insurer had made no attempt to resolve the matter with Dr Cosgriff. The respondent’s email dated 23 March 2020 advised that at the hearing a claim would be made for re-instatement of weekly payments from the date of suspension together with interest.
The Arbitrator referred to Widdup v Hamilton[15] in which Sheahan J found that there was “no express or incidental power to make ‘declaratory orders’ pursuant to section 60 [of the Workers Compensation Act 1987]”. The Arbitrator said that Widdup and Wells were cases dealing with section 60 orders for medical expenses not yet incurred. He said the issue of the respondent’s attendance on an IME was crystalised by 6 March 2020 when the respondent’s solicitor told the University’s claims officer “It seems that we agree to disagree.” The respondent also asserted that s 119 had been breached and the University was not entitled to suspend weekly payments.[16] The Arbitrator referred to an argument by the University that the respondent had not satisfied the procedural requirements of ss 289 and 289A of the 1998 Act.[17]
[15] [2006] NSWWCCPD 258 (Widdup).
[16] Reasons, [47]–[52].
[17] Reasons, [59].
The Arbitrator said the University conceded that the respondent had made a claim for weekly compensation, in that it made payments of compensation on a provisional basis pursuant to the letter dated 22 January 2020. He said, based on correspondence to which he referred, that it was clear there was a dispute between the parties about a claim for weekly payments. He said that, in its letter dated 23 March 2020 advising of the suspension effective 18 March 2020, the University disputed its liability to pay the claim for weekly benefits. The respondent was entitled to refer the dispute for determination pursuant to s 289(1) of the 1998 Act.[18] The Arbitrator concluded that the Commission had jurisdiction to determine the dispute.[19]
[18] Reasons, [58], [60]–[63], [66].
[19] Reasons, [67].
The Arbitrator referred to s 119 of the 1998 Act. Subsection (1) required a worker, if required by the employer, to submit for medical examination by a doctor provided and paid for by the employer. Subsection (4) provided that the worker not be required to submit “otherwise than in accordance with the Workers Compensation Guidelines. The Guidelines at 7.1 referred to “mandatory obligations for insurers when they require a worker to attend an IME”. The University submitted the Guidelines did not bind it as a self-insurer. It submitted the Guidelines were not delegated legislation and in the event of inconsistency, the legislation prevailed. The respondent submitted that the employer and the insurer were essentially the same, it was the University as an insurer which was making the appointment.[20]
[20] Reasons, [68]–[73].
The Arbitrator referred to Ali v AAI Limited,[21] in which Leeming JA, dealing with Guidelines made pursuant to the Motor Accidents Compensation Act 1999, said “it will be necessary to address the provisions of statute which makes the guidelines applicable, and it will be necessary to address the particular clauses relied on … they are not all of the same legal force”[22]. The Arbitrator also referred to the discussion of guidelines in Fletcher International Exports Pty Ltd v Barrow.[23] The Arbitrator noted the University’s submission that the Guidelines did not apply to it.[24]
[21] [2016] NSWCA 110 (Ali).
[22] Ali, [99].
[23] [2007] NSWCA 244 (Barrow).
[24] Reasons, [74]–[77].
The Arbitrator said that s 119(4) of the 1998 Act made the Guidelines applicable to the requirement that a worker attend an IME in accordance with subs (1). The Arbitrator did not see inconsistency between the Guidelines and s 119. Whilst the 2019 Guidelines did not refer to an ‘employer’, subss (5) and (6) of s 119 placed the same obligations on both an employer and an insurer. The University was a self-insurer and was obliged to comply with the “mandatory obligations” in the 2019 Guidelines. The Arbitrator rejected the University’s submission that it was entitled to immediately request a medical examination irrespective of the provisions in the Guidelines.[25]
[25] Reasons, [78]–[82].
The Arbitrator referred to the Guidelines at Pt 7.1, which provided that “[r]eferral for an IME is appropriate when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners”. The University simply had to pay an invoice to receive the general practitioner’s clinical notes. Until that was done, it could not explain why the information was “inadequate, inconsistent or unavailable”. The Arbitrator did not accept the University’s submission that the “workers compensation guide for medical practitioners”, a New South Wales government guide, prevented the University from paying for the clinical notes. That guide provided that prepayment could not be made for reports. The Arbitrator also said that the University had failed to comply with Pt 7.7 of the Guidelines, when it advised of its decision dealing with the respondent’s objection. The advice did not include contact information of the Workers Compensation Independent Review Office (WIRO), contrary to the Guidelines. The Arbitrator concluded that the University had “failed to comply with the 2019 Guidelines and the [respondent] was not therefore required to submit herself for the IME examination arranged by the [University] for 18 March 2020”.[26]
[26] Reasons, [83]–[88].
The Arbitrator noted a submission by the University that the evidence available was two non-WorkCover certificates and a letter from Dr Cosgriff. The University submitted the evidence was “inadequate for any kind of determination to be made for the payment of any compensation”. The Arbitrator said that the University made weekly payments on a provisional basis in the absence of a reasonable excuse not to. The Arbitrator ordered that the University reinstate any provisional payments due after 18 March 2020 up to a maximum period of 12 weeks. The Arbitrator noted the evidence was “inadequate” for a determination of entitlement outside the period of 12 weeks when provisional payments were payable.[27]
[27] Reasons, [95]–[98].
TRANSITIONAL MATTERS
After the current appeal was lodged, the Workers Compensation Commission was abolished.[28] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[29] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[28] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[29] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) 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 University submits there should be an oral hearing, as the transcript is not available and the issue regarding the availability of a ‘declaratory’ order “is somewhat novel”. The respondent submits the appeal can be decided on the basis of the written material. Transcript of the first instance hearing before Arbitrator Batchelor is now available to the parties. The University has lodged further submissions dealing with it. The parties have had a full opportunity to make written submissions dealing with the issue raised by the University associated with whether there was a declaratory order. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[30] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[31] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[32]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[33]
[30] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[31] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[32] [1996] HCA 140; 140 ALR 227.
[33] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[34] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[35]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[36]
[34] [2017] NSWWCCPD 5, [67].
[35] [2001] FCA 1833, [28].
[36] Raulston, [20].
In Heggie, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[37]
[37] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[38] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[39]
[38] [2020] NSWCA 54 (Hill).
[39] Hill, [20].
GROUNDS OF APPEAL
The University raises the following grounds in its Appeal Application:
(a) Error of law in purporting to make an order in the nature of declaratory relief. (Ground No. 1)
(b) Error of fact in determining that there had relevantly been a claim for weekly compensation. (Ground No. 2)
(c) Error of law in the consideration and application of the ‘Guidelines’. (Ground No. 3)
(d) Error of fact in determining that the University had not complied with the Guidelines. (Ground No. 4)
(e) Error of law and discretion in making orders not sought in the Application. (Ground No. 5)
The University additionally, in its Further Submissions following receipt of the transcript, sought to add another ground:
Error of law on the basis that the Arbitrator determined the matter on a basis not put by or to the parties, constituting a denial of procedural fairness. (Ground No. 6)[40]
[40] Appellant’s further submissions following receipt of transcript, [6].
The opportunity given to an appellant to lodge supplementary submissions, following receipt of the transcript, is not one to raise fresh grounds of appeal.[41] The University has not specifically sought leave to rely on the fresh ground. The respondent, following a Direction issued by the Commission dated 18 November 2020, put on further submissions dealing with the sixth ground. The respondent does not assert prejudice, nor does it oppose the granting of leave to rely on the additional ground. She does argue that the further ground is without merit. The further ground has been addressed by both parties. The appropriate course in all of the circumstances is that leave to rely on the additional ground be granted. This does not involve acceptance of the practice of adding a ground of appeal, without leave, following supply of the transcript.
[41] Handley v Canterbury City Council [2020] NSWWCCPD 59, [87].
LEGISLATION AND GUIDELINES
Section 119 of the 1998 Act provides:
“119 Medical examination of workers at direction of employer
(cf former s 129)
(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(2) A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(3) If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination—
(a) the worker’s right to recover compensation under this Act with respect to the injury, or
(b) the worker’s right to the weekly payments,
is suspended until the examination has taken place.
(4) A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the Workers Compensation Guidelines or at more frequent intervals than may be prescribed by the Workers Compensation Guidelines.
(5) The regulations may make provision for or with respect to requiring an employer or insurer to provide a worker, a worker’s legal representative or any other person, within the period required by the regulations, with a copy of any medical opinion or report furnished to the employer or insurer by a medical practitioner in connection with an examination of the worker pursuant to a requirement under this section.
(6) If an employer or insurer fails to provide a copy of an opinion or report as required by the regulations under subsection (5)—
(a) the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the opinion or report for any other purpose prescribed by the regulations for the purposes of this section, and
(b) the opinion or report is not admissible in proceedings on such a dispute before the Commission, and
(c) the opinion or report may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.”
Section 289 of the 1998 Act provides:
“289 Restrictions as to when dispute can be referred to Commission
(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 in its form at the time of the Arbitrator’s decision provided:
“289A Further restrictions as to when a dispute can be referred to Commission
(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 Registrar 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.”
Section 376 of the 1998 Act in its form at the time of the Arbitrator’s decision provided:
“376 Issue of guidelines
(1) The Authority may issue guidelines with respect to the following—
(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,
(a1) the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,
(b) the giving of interim payment directions by the Registrar under Part 5,
(c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines.
(2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment).
(3) The Authority may amend, revoke or replace Workers Compensation Guidelines made by the Authority, and the Minister may amend, revoke or replace Workers Compensation Guidelines made by the Minister.
(4) Workers Compensation Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.
(5) Workers Compensation Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.
(6) The regulations may make provision for or with respect to any matter for which the Workers Compensation Guidelines can provide.”
Amendments introduced by the 2020 Act amended subs 289A(2)(b) by substituting the word “President” for “Registrar”. The amendments repealed subss (1)(b) and (2) of s 376. These amendments do not affect the subject matter of these proceedings.
The Arbitrator referred to the Workers Compensation Guidelines 2019 as being the edition of the Guidelines that had application in the circumstances.[42] No party submits to the contrary. The introduction to Pt 7 of the Workers Compensation Guidelines 2019 (the Guidelines) provides:
“An independent medical examination (IME) is an assessment conducted by an appropriately qualified and experienced medical practitioner to help resolve an issue in injury or claims management.
An insurer may direct a worker who has given notice of an injury or is receiving weekly payments of compensation to attend an IME.
Section 119(4) of the 1998 Act allows the Guidelines to specify the requirements for arranging independent medical examinations.
The mandatory obligations for insurers when they require a worker to attend an IME are outlined below.”
[42] Reasons, [70].
Part 7.1 of the Guidelines provides:
“7.1 Reason for referral
Referral for an IME is appropriate when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners.
Evidence of contact (or multiple attempts to contact) to try to resolve these issues with the nominated treating practitioner must be documented on the claim file.
An IME is appropriate where the information required relates to:
• diagnosis of an injury reported by the worker
• determining the contribution of work incidents, duties and/or practices to the injury
• whether the need for treatment results from the worker’s injury and is reasonably necessary
• recommendations and/or need for treatment
• capacity for pre-injury duties and hours
• the likelihood of and timeframe for recovery
• capacity for other work/duties (descriptions of such duties are to be provided to the independent medical examiner)
• what past and/or ongoing incapacity results from the injury
• physical capabilities and any activities that must be avoided
The reason for the referral must be documented on the claim file.
An insurer may also refer a worker for an independent medical examination for the purpose of obtaining an assessment of permanent injury (injuries before 01/01/2002) or permanent impairment (injuries on and after 01/01/2002) resulting from the injury.”
Part 7.7 of the Guidelines provides:
“7.7 Unreasonable request
If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.
The insurer must consider this objection and advise the worker of their decision. This advice must include contact information for the Workers Compensation Independent Review Office (WIRO). Benefits are not to be affected prior to adequate written notice being received by the worker.
Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinstated.”
GROUND NO. 1: Purporting to make an order in the nature of declaratory relief
GROUND NO. 2: Determining there had been a claim for weekly compensation
GROUND NO. 5: Making orders not sought in the Application
There is overlap in these grounds, which go in significant part to the nature of the relief sought. It is convenient to deal with them together.
University’s submissions
The University submits the respondent “made no claim for compensation benefits of any kind”. There was no evidence to support an entitlement to benefits, there were no certificates of capacity and no evidence of the respondent’s employment circumstances. The order in the respondent’s favour was a jurisdictional error and not open on the evidence.[43] The University refers to its submission at first instance, that there was no claim for compensation and the respondent sought declaratory relief before there were determinations about matters such as injury, main contributing factor and incapacity.[44]
[43] Appellant’s submissions, [7].
[44] Transcript 19.8.20 (T) 11.1–27, 15.30–32, 22.3–23.2. Appellant’s further submissions, [1], [2].
The University submits the Arbitrator determined that a claim for weekly compensation had been made on the basis of an “alleged concession” by the University which was not made. There was no evidence of such a claim. No such claim was pressed at the arbitration. The University referred to its submission at first instance that the only order sought by the respondent was to quash the referral to the IME, Dr Miller. The respondent did not seek to amend to make such a claim and conceded there was no such claim. It was an error to require the payment of weekly compensation in the circumstances.[45]
[45] Appellant’s submissions, [8], [11]. Appellant’s further submissions, [5], T 31.22–26.
Respondent’s submissions
The respondent submits the University commenced payments of provisional compensation pursuant to s 267. It ceased on the basis of s 119(3) of the 1998 Act, asserting the respondent had failed to submit to a medical examination. There was no other basis for the cessation. No substantive basis, such as the respondent’s capacity, was in issue. The sole issue was whether there were grounds pursuant to s 119(3) for the cessation; if there was no basis for the suspension the status quo would necessarily be restored. The Arbitrator identified the issue, his decision was both open to him and correct.[46]
[46] Respondent’s submissions, [2]–[10].
That a claim was made was borne out by the payments pursuant to ss 267 and 269 of the 1998 Act and the letter dated 22 January 2020 accepting provisional liability. The letter referred to “your claim for compensation”. The cessation of payments was simply a “punitive response” to the respondent’s lawful refusal to submit to the medical examination.[47] Reinstatement of provisional payments was a necessary consequence of the finding that the University was not entitled to suspend payments in the circumstances. The respondent submits there was no error and the appeal should be dismissed.[48]
[47] Respondent’s submissions, [11]–[16].
[48] Respondent’s submissions, [31]–[34].
Consideration
The University wrote to the respondent on 22 January 2020. The heading of the letter referred to a claim number, “DATE OF INJURY: 8 January 2020” and “CONDITION: PSYCHOLOGICAL” The University described itself as “a licensed Self-Insurer under the Workers Compensation Act 1987”. It continued:
“We refer to your claim for compensation with respect to the above-mentioned injury.
What is happening with your claim:
After careful consideration of all available information provisional liability has commenced for weekly payments for up to a maximum of 12 weeks.”
The Arbitrator referred to this letter in his reasons, saying:
“In this case it is conceded by the respondent that the applicant had made a claim for weekly benefits as she was in receipt of provisional payments of weekly compensation pursuant to letter dated 22 January 2020 from the respondent to the applicant.”[49]
[49] Reasons, [58].
The letter plainly was capable of supporting the Arbitrator’s conclusion, that it conceded receipt by the University of a claim for compensation. Provisional payments pursuant to s 267 of the 1998 Act can commence in the absence of a claim for compensation if there is a notice of injury. This was not what the letter said. It was within the capacity of the University to adduce evidence that its concession of a claim for compensation was erroneous if that was its position. It did not do so.[50] The Arbitrator’s finding on this point was one of fact. The University cannot successfully challenge it on appeal, applying the principles outlined at [22] to [26] above. The Arbitrator did not err in finding that a claim for compensation had been made.
[50] Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; 98 ER 969 at 970, Ho v Powell [2001] NSWCA 168; 51 NSWLR 572, [14]–[15].
The University challenges the awarding of compensation in circumstances where there was not evidence to support an entitlement to benefits.[51] This argument is without merit. The respondent correctly submits that matters such as incapacity and her employment circumstances had not been placed in issue by the University. The matters the University refers to in its submissions, injury, incapacity and main contributing factor, had not been placed in issue between the parties. The University’s notice suspending weekly payments was dated 23 March 2020. It stated that it was issued in accordance with s 119(3) of the 1998 Act. It said:
“This notice is to advise that payment of weekly benefits will be suspended effective 18 March 2020 as you have refused to submit yourself for examination by a medical practitioner, provided and paid for by your employer, UNSW.”
[51] Appellant’s submissions, [7].
It set out details of a further examination it had arranged with Dr Miller for 7 May 2020 and advised:
“Weekly payments are suspended until the examination has taken place.” (emphasis added)
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.[52] 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.”[53]
[52] Respondent’s submissions, [4]–[7].
[53] Reasons, [63].
The University also argues that the only orders sought by the respondent were to quash the referral to an IME.
The matters in dispute were set out in the Application:
“The insurer proposed an IME with Dr Miller on 18 March 2020 which does not comply with Workplace Injury Management and Workers Compensation Act 1998 Section 119 and the Guidelines and thus the provisions of Section 119(4) apply.
The worker’s representative wrote on 10 February 2020 to advise the requirement to attend was unreasonable. Further correspondence ensue[d] on 17 February 2020, 18 February 2020, and 19 February 2020 (twice). Correspondence is attached.”
The attached documents included an email from the University to the respondent’s solicitor dated 19 February 2020. It asserted both that the University was not bound by the Guidelines and that it was in compliance with them. It stated: “If your client does not attend the IME compensation will be suspended.”[54]
[54] MA, p 11.
A copy email from the respondent’s solicitor to the University was also attached. It referred the reader to s 119(4) of the 1998 Act. It said:
“Subject to WIRO funding I will shortly be filing proceedings seeking an order that as the Guidelines have not been complied with, and thus WIM Act s 119 has been breached, you are not entitled to suspend weekly payments.”[55]
[55] MA, p 12.
The University issued a notice dated 23 March 2020 in which it advised that payments were suspended effective 18 March 2020, pursuant to s 119(3) of the 1998 Act.[56] The respondent’s solicitor by email dated 23 March 2020 advised the University of the following:
“In relation to the Notice Suspension Weekly Payments [sic], I draw your attention to Part 7.7 of the Workers Compensation Guidelines. You have not considered the objection and the decision to suspend payments has been made in circumstances where further breaches of the Guidelines have occurred, namely you did not allow a reasonable opportunity to comply with a reasonable request, the decision was not based on sound evidence and your written advice as required by the Guidelines post dates the suspension and gives scant reasons.
Notice is given that at the hearing of the matter in the Commission further Orders will be sought. Specifically, that the appointment with Dr Miller on 7th May also does not comply with the WIM Act or Guidelines, that the suspension of weekly payments was unreasonable, that those weekly payments be reinstated from the date of suspension and that interest be paid on the suspended payments pursuant to WIM Act s 110.”[57]
[56] AALD 30.3.20, p 2.
[57] AALD 30.3.20, p 6.
The relief sought by the respondent was plain. It pursued these orders at the arbitration hearing. Near the commencement of his submissions, and before the University addressed, the respondent’s solicitor said:
“MR BRENNAN: … Of importance is the email that I forwarded to Andrea Flood on the 23rd of March 2020, which is probably the fourth or fifth document from the top in the application, and that follows the suspension of weekly payments. I’ve set out in that email what should have been done, and pointed out what I submit was not done, and notice is given that at the hearing of the matter, further orders will be sought, specifically an order that the appointment with Dr Miller on the 7th of May does not comply with the WIM Act or guidelines, that the suspension of weekly repayments was unreasonable, and order that those weekly repayments [sic, payments] be reinstated from the date of suspension, and an order that interest be paid on the suspended payments, pursuant to WIM Act section 110. That, in addition to what is referred to in the [Miscellaneous Application] itself, is what’s before the Commission, and there is no doubt whatsoever that the Commission has jurisdiction to determine that …”.[58]
[58] T 4.19–5.2.
Towards the close of his submissions, in an exchange with the Arbitrator, the following was said:
“ARBITRATOR: … What are the specific orders that you’re seeking, in the event that the [respondent] is successful?
MR BRENNAN: In the last paragraph there, specifically that the appointment with Dr Miller on the 7th of May – and that was a further attempt at an IME – does not comply with the WIM Act or Guidelines, for the same reason; that the suspension of the weekly payments was unreasonable, that the weekly payments be reinstated, and an order for interest on the suspended payments, pursuant to the WIM Act section 110.”[59]
…
“ARBITRATOR: You said you would assume [the University], as a responsible litigant – a model litigant, I should say, would reinstate payments if I determine that the suspension was unreasonable.
MR BRENNAN: Indeed.
ARBITRATOR: But you’re still seeking a specific order from me, are you?
MR BRENNAN: Yes. I was – well, yes, I am.”[60]
[59] T 26.13–23.
[60] T 28.23–33.
The University responded to this:
“MR SAUL: Let me just finish my other point. So when we started this, you identified, Mr Arbitrator, the documents. I then made my submissions on the basis of what was contained in the application to resolve a dispute, this miscellaneous application, and that’s why I took you through it all, because – and right at this point, we still haven’t had the amendment to it, so the only relief that is being sought, and that’s what I’m here to meet, is this order that – paraphrasing – that Dr Miller’s referral should be quashed. That’s the only relief that is being sought.
Now, what flows from that is a different matter, and you don’t need to be concerned with it, because you’re not being asked to do anything other than that, and then that’s where my submissions commenced. So that’s as far as the case should go.
ARBITRATOR: Thank you. I understand that.”[61]
[61] T 31.16–34.
Consistent with the notice that was given on 23 March 2020, the respondent at the hearing on 19 August 2020 pursued precisely the orders of which it had previously given notice. The Arbitrator made such orders, save for that in respect of interest. The University was clearly on notice of these matters and had the opportunity to address on them. The University’s argument that those matters were not before the Commission, on the basis that they were not pleaded, is without merit. It is inconsistent with settled practice in the Commission. It is inconsistent with Far West Area Health Service v Radford[62] and other Presidential decisions which apply it.[63] The orders that were made in the circumstances did not merely consist of a declaration of liability.
[62] [2003] NSWWCCPD 10, [23]–[24].
[63] See for example Woolworths Ltd v Wagg [2017] NSWWCCPD 13, [96]; Rinker Group Ltd v Mackell (No.2) [2009] NSWWCCPD 97, [241]; BHP Billiton Ltd v Bourke [2009] NSWWCCPD 117; 7 DDCR 535, [58], Harding v Westpac Banking Corporation [2018] NSWWCCPD 7, [46].
Grounds Nos. 1, 2 and 5 fail.
GROUND NO. 3: Error in considering and applying the Guidelines
GROUND NO. 4: Error in determining the Guidelines were not complied with
These grounds raise issues going to the application of the Guidelines. It is convenient to deal with them together.
University’s submissions
The University submits the Arbitrator erred in law in relying on the Guidelines, which were “a non-binding indication of policy”. It submits pre-payment for clinical notes “is clearly constrained in the same way as it would be for a medical report”. It submits that it “complied with the relevant Guidelines to the extent that it was open”.[64]
[64] Appellant’s submissions, [9]–[10].
Respondent’s submissions
The respondent submits Ground No. 3 is misconceived. Section 376(1)(c) of the 1998 Act provides for the issue of Guidelines with respect to “such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines”. Section 119(4) of the 1998 Act provides that a worker must not be required to submit to medical examination under s 119 otherwise than in accordance with the Guidelines.
The respondent refers to Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council,[65] in which the Court of Appeal considered the status of the Guidelines in the context of s 119. His Honour Justice Basten described the Guidelines as being “authorised by a combination of [s 119(4)] and s 376(1)(c) of the 1998 Act”.[66] After referring to passages from that decision, the respondent submits that the “Guidelines specifically regulate the circumstances in which a worker may be required to submit to a medical examination at the direction of an employer.”[67]
[65] [2009] NSWCA 59 (Kurnell Passenger).
[66] Kurnell Passenger, [97].
[67] Respondent’s submissions, [20]–[25].
The respondent submits it was open to the Arbitrator to find that the University did not comply with the Guidelines. It maintained it was not bound by them, it declined to pay for the release of Dr Cosgriff’s records, the respondent submits the University was “openly defiant of its obligations”. The respondent submits the argument that the University was “prevented from paying for copies of Dr Cosgriff’s records by the medical practitioner’s guide is untenable”. It submits there was no error in the finding that the University failed to comply with the Guidelines.[68]
[68] Respondent’s submissions, [27]–[30].
Consideration
In Kurnell Passenger Basten JA said:
“Reference to the terms of the Guidelines demonstrates that, like s 119 itself, the drafter had in mind the need to balance the interests of the employer and the injured worker for the purposes identified by the primary judge in the passage set out above. The interrelationship between sub-ss (2) and (4) of s 119 is not beyond doubt. Subsection (4) could be seen as defining the scope of the power conferred by sub-s (2), or as controlling the manner of its operation. Because sub-s (4) refers to that which is done ‘under this section’, the latter alternative is to be preferred.”[69]
[69] Kurnell Passenger, [104].
McColl JA was in agreement with Basten JA on this issue. The University’s submission that the Guidelines represent “a non-binding indication of policy” is inconsistent with what was said by Basten JA in Kurnell Passenger at [97] (see [61] above) and at [104]. It is also inconsistent with the structure of s 119 and its interrelationship with the Guidelines. Consistent with the above, the Guidelines control the manner of operation of s 119. I accept the respondent’s submission that the Guidelines “regulate the circumstances in which a worker may be required to submit to a medical examination at the direction of an employer”.
It follows that I accept the respondent’s submission that the Arbitrator did not err in relying on the Guidelines, as he was bound to do.
The University’s submission that it was prevented, by the “Workers compensation guide for medical practitioners”, from prepaying Dr Cosgriff’s fee for the supply of clinical records is plainly wrong. There is no suggestion from the document that it possesses any regulatory authority at all. The University’s submissions do not suggest any basis on which it would have such authority. The only parts of the document put into evidence are its contents pages together with the page which states that “Prepayment (in whole or part) cannot be made for reports.” The guide appears to be what its name suggests, a “guide for medical practitioners” (emphasis added). Additionally, what it purports to prohibit is prepayment for medical reports, it does not prohibit paying a fee for the supply of clinical notes. It does not assist the University.
Grounds Nos. 3 and 4 fail.
GROUND NO. 6: determining the matter on a basis not put by or to the parties, constituting a denial of procedural fairness.
University’s submissions
The University refers to five paragraphs in the reasons that are submitted to contain matters which were not the subject of submissions on behalf of the respondent nor matters addressed to the parties by the Arbitrator. The paragraphs were those at [64] to [66], [78] and [95]. It submits this constituted a denial of procedural fairness.[70] This is the sole extent of the university’s submissions on this added ground.
[70] Appellant’s further submissions following receipt of transcript, [6].
Respondent’s submissions
The respondent submits the matter was not determined on the basis set out in these paragraphs. The sole issue was whether the University had a basis to suspend the provisional weekly payments because of the respondent’s failure to attend the IME appointment. The discussion at [64] to [66] of the reasons went to the nature of the dispute which was before the Commission. The respondent submits it was not contentious that there was an issue capable of determination. The Arbitrator in the reasons at [20] said that the University’s submission on jurisdiction was based on its argument that the respondent was seeking nothing other than declaratory relief. The respondent submits the added ground “does not relate to a matter of substance” and had no bearing on the University’s case or the outcome of the litigation.[71]
[71] Respondent’s further submissions, [2]–[8].
The respondent submits that the reasons at [78] involve consideration of s 119(4) and the Guidelines, reflecting “thoroughness and completeness”. This did not involve a new path of reasoning or determination of the dispute on terms not contemplated by the parties. The respondent submits the appellant’s submissions do not deal with “how the Arbitrator’s observations at [78] are erroneous and affect the outcome”. It is an attempt to elevate procedure over substance.[72]
[72] Respondent’s further submissions, [9]–[10].
The respondent submits that, at [95], the Arbitrator considered the University’s submission regarding the absence of evidence about capacity. He rejected the University’s submission which was open to him. The issue in the case was limited, did the University have a basis to suspend payments pursuant to s 119. Overall, it is submitted that the further ground is without merit.[73]
[73] Respondent’s further submissions, [11]–[12].
Consideration
The five paragraphs the subject of this ground are set out below:
“64. Section 289A(2)(a) states that a matter is taken to have been previously notified as disputed if it was notified in a notice of dispute under the 1998 Act or the 1987 Act after a claim was made or a claim was reviewed. Section 78 of the 1998 Act replaced s 74 as from 1 January 2019; s 78(1) provides that an insurer must give notice in accordance with Division 3 of Part 2 of Chapter 4 of the 1998 Act of any decision to dispute liability in respect of a claim or any aspect of a claim. Section 79 sets out how such notice is given, and s 80 sets out the required period of notice that an insurer must give when discontinuing payment to a worker of weekly payments or reducing the amount of compensation. Regulation 38 of the 2016 Regulation sets out the information which must be contained in a notice under s 78 of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim.
65. The former section 74 of the 1998 Act, repealed as from 1 January 2019, set out the matters in respect of which insurers were required to give notice and reasons when liability was disputed. It was included in Division 2 of Part 2 of Chapter 4 of the 1998 Act. The definition section in that Division, s 70, includes a definition of insurer as meaning ‘a licensed insurer, former licensed insurer or a self-insurer.’ Division 3, containing s 78, does not contain a definition of insurer.
66. It may be that s 78 of the 1998 Act does not apply to a self-insurer such as the respondent. However, without deciding that, it is clear that Angela Flood’s email of 17 February 2020, referred to above at [61], could not be a notice to the applicant under s 78. Notwithstanding that, it is also clear that UNSW in that email, and in the other communications between it and the applicant and Mr Brennan referred to above at [60]–[62], was disputing liability for the applicant’s claim for weekly benefits. Therefore, pursuant to s 289(1) of the 1998 Act, the applicant was entitled to have that dispute referred to the Commission for determination.”
“78. Section 119(4) makes the Workers Compensation Guidelines (in this case the 2019 Guidelines) applicable to the requirement of a worker to attend an IME if so required by the employer in accordance with subsection (1). I do not see any inconsistency between those Guidelines and s 119 of the 1998 Act, apart from the lack of reference in the 2019 Guidelines to ‘employer’. Subsections (5) and (6) refer to obligations placed on an employer or insurer to do certain things if the regulations so provide. It is the same obligation placed on both.”
“95. The respondent has pointed out that the only evidence in the proceedings as to injury and incapacity is two non-WorkCover certificates (dated 9 and 10 January 2020[74]) and a letter from Dr Cosgriff dated 3 March 2020 attached to the Application. It submits that such evidence is inadequate for any kind of determination to be made for the payment of any compensation.[75] I accept that submission, but note that the respondent in commencing provisional weekly payments, which it is obliged to do in the absence of a reasonable excuse not to commence those weekly payments, did not have such a reasonable excuse. It is not apparent what information it had before it when it commenced making provisional weekly payments for up to a maximum of 12 weeks, but it gave ‘careful consideration’ to ‘all of the available information’ before commencing weekly payments.”
[74] Reply, pp 2–3.
[75] T 14.30.
The reasons at [64] to [65] contain an apparently unexceptional description of provisions in the 1998 Act regarding, in a general sense, the giving of notices where liability is disputed. The University’s submissions give no indication whatsoever of how this involved a denial of procedural fairness. There is no suggestion that there were submissions that could otherwise have been made or anything of that nature. At [66] there was a finding that the University’s communications (referred to at [60] to [62] of the reasons) were sufficient to dispute liability for weekly benefits. The University does not suggest the reasons at [60] to [62] involve any breach of the principles of procedural fairness. It is there found (at [63]) that the correspondence dated 23 March 2020, suspending provisional payments, disputed the entitlement to weekly benefits and entitled the respondent to refer the dispute for determination by the Commission. The passage at [66] does little more than repeat the reasoning at [62] to [63]. The University’s submissions do not identify any basis why the passage at [64] to [65] constitutes procedural unfairness.
The reasons at [78] deal largely with whether there is inconsistency between s 119 and the Guidelines. This was a matter raised by the University in its submissions (see the reasons at [25]). It was appropriate that the Arbitrator consider it.
The reasons at [95] deal with the alleged paucity of evidence going to matters such as incapacity. This was a matter raised in the University’s submissions.[76] The reasons here also deal with the basis on which the University made payments of provisional compensation. That was a topic raised in the respondent’s submissions.[77]
[76] T 14.30–15.4.
[77] T 25.2–6.
The University’s submissions on this added ground are put in very general and unhelpful terms, that the nominated paragraphs contain matter not the subject of submissions by the worker or addressed to the parties by the Arbitrator. In general terms, the Arbitrator’s reasons address the basis on which the matter was conducted before him. The University’s submissions do not address, with any specificity, the matters that were allegedly outside the submissions and how the case was conducted. They do not address how procedural unfairness allegedly resulted, for example, on what matters the University was not afforded an opportunity to make submissions. They do not address whether any such denial of procedural fairness could have affected the result. The University has not made good its argument in Ground No. 6.
All of the grounds have failed. The appeal is unsuccessful.
DECISION
Leave is granted to the University to amend its Grounds of Appeal to add a further ground, Ground No. 6.
The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed.
Michael Snell
DEPUTY PRESIDENT
29 March 2021
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