Cootamundra-Gundagai Regional Council v McInerney (NSWPICPD 2024)

Link to Decision

Link to Video

Key Takeaways

The Acting Deputy President (ADP) permitted the employer to appeal a Member’s decision in which leave to raise a previously un-notified issue under s289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) had been declined.

It was held that it was in the interests of justice to grant leave for the un-notified issues to be determined by the Personal Injury Commission (PIC). The employer succeeded in having a Certificate of Determination (COD) issued in the worker’s favour revoked and the un-notified issue in dispute was remitted for determination by a different Member.

Brief Facts

In June 2022, the insurer accepted provisional liability for the worker’s claim for psychological injury after obtaining a report from the worker’s nominated treating doctor (NTD).

On 18 August 2022, the insurer requested the worker undergo an independent medical examination (IME). The following day, the insurer issued a s78 notice disputing injury and raising a s11A(1) defence. The notice stated that the worker was still obliged to attend the upcoming IME citing s119 of the 1998 Act. That section provides (inter alia) that a worker who has given notice of an injury must submit themselves for an IME arranged and paid by the insurer. It also provides that if a worker refuses to attend an IME, their right to recover compensation is suspended until the examination has taken place.

In this case, the insurer had on three more occasions requested the worker attend an IME. The worker refused all requests on the grounds that liability had been declined and asserted that the insurer had not complied with the guidelines because the information provided by the NTD was not inadequate.

On 18 July 2023, the worker filed an application to resolve a dispute. On 9 August 2023, the insurer issued another dispute notice further asserting that the worker’s right to recover compensation was suspended by the operation of s119 of the 1998 Act and s44A(6) of the of the Workers Compensation Act 1987, the latter section providing that a worker’s right to weekly payments will be suspended should they refuse to attend an IME for the purposes of a work capacity assessment.

At the preliminary conference on 18 August 2023, the s119 issue was raised with the Member directing the parties to file and serve submissions addressing the application of that section. In its primary submissions, the appellant employer made an application under s289A(4) of the 1998 Act seeking leave to have the issues raised in the notice of 9 August 2023 determined. The application for leave was heard by the Member on 11 October 2023 following which a decision refusing leave was delivered.

An appeal against the interlocutory decision was filed by the employer, but later withdrawn. The substantive matter came before the Member on 1 November 2023 following which a COD was issued in the worker’s favour.

The employer then filed an appeal against the interlocutory decision on the grounds that the Member had failed to take into account all of the principles set out in Matteus v Zodune Pty Limited t/as Tempo Cleaning Services (NSWWCCPD 2007) in considering whether to grant leave under s289A(4).

Judgment

The ADP firstly considered whether leave should be granted to appeal the interlocutory decision noting that s352(3A) of the 1998 Act provides that:

• there is no appeal against an interlocutory decision except with the leave of the Commission; and
• the Commission is not to grant leave unless it determines the appeal is necessary or desirable for the proper and effective determination of the dispute.

The ADP accepted that there was an issue as to whether the Member properly considered the question of leave under s289A(4) and held that it was necessary and/or desirable for the interlocutory decision to be reviewed. In arriving at that decision, the ADP applied the following principles as set out in Mateus:

• The degree of difficulty or complexity to which the un-notified issues give rise
• When the insurer notified that it wished to contest any un-notified issue
• The degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability
• Any prejudice that may be occasioned by the worker
• Any other relevant matters arising from the particular circumstance of the case
• That the decision to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved
• Whether the insurer acted promptly to bring the matter to the attention of the Commission and other parties
• Whether there is any unreasonable or unexplained delay in giving notice of the un-notified matter;
• The merit and substance of the issue that is sought to be raised
• In assessing prejudice to the worker, when and in what circumstances was the worker first made aware of the un-notified issue
• Equity, good conscience and the substantial merits of the case
• The general conduct of the parties in the proceedings

The ADP noted that whilst the Member had listed all of the relevant principles, only two of those principles had been considered and decided, those being:

• that there was no adequate explanation for the insurer’s delay in raising the s119 issue; and
• that there had been prejudice to the worker.

The ADP determined that by failing to address all of the relevant principles, the Member had made an error of law. Additionally, the ADP found that the worker had not relevantly engaged with the ground of appeal dealing with prejudice. Although the worker had submitted on appeal that the substantive matter should have been heard on 11 October 2023 and that the prejudice to the worker was a delay of the determination of the application, the identification of the prejudice in those terms had not been put to or considered by the Member. The ADP was therefore unable to determine whether what the Member had taken into account was relevant or irrelevant.

On considering each of the Mateus principles, the ADP held that it was in the interests of justice to grant the employer leave under s289A(4) to raise the previously un-notified issues. Both the interlocutory and substantive decisions were revoked with the determination of the un-notified issues (ss 119 and 44A(6)) remitted to a different non-presidential Member.

Implications

Whilst it is always best practice to issue a s78 notice raising all issues in dispute as early as possible, the PIC may grant leave to an insurer to raise a previously un-notified matter in dispute where it is in the interests of justice to do so. It will be important to address each of the criteria from Mateus in any s289A application for the PIC to consider whether leave should be granted.