Green v Seven Network (Operations) Ltd (NSWPIC 2021)

Key Takeaways

For the purposes of s119 of the Workplace Injury Management and Workers Compensation Act 1998 (‘1998 Act’) a psychologist is not a medical practitioner, and an insurer cannot suspend weekly benefits if a worker fails to submit themselves for an assessment by a psychologist qualified by the insurer.

Brief Facts

The worker was employed as a contestant on the television show “My Kitchen Rules”, by Seven Network (Operations) Limited.

During her time on “My Kitchen Rules” the worker suffered a psychological injury as a result of ‘vilification and bullying from producers and the network’.

For the purposes of a whole person impairment assessment the respondent insurer arranged for the worker to be assessed by a psychiatrist, Dr Graham George and clinical psychologist, Professor Mattick.

The worker agreed to attend the appointment with Dr George, however declined to submit to an assessment with Professor Mattick.

The respondent suspended the worker’s weekly benefits pursuant s119(3) of the 1998 Act, on the basis that the worker refused to submit for an examination by a medical practitioner appointed by the employer.

The worker commenced proceedings in the Personal Injury Commission (‘PIC’), challenging the validity of the suspension.

The key issue to be determined was whether a clinical psychologist is a ‘medical practitioner’ for the purposes of s119 of the 1998 Act.

Judgment

At arbitration, Member Rimmer noted that the term ‘medical practitioner’ is not defined in the 1998 Act.

The Member concluded that the term ‘medical practitioner’ should be interpreted as a ‘person who is registered under the relevant law in the medical profession’.

Member Rimmer endorsed the reasoning of Member Homan in Yu v Spotless Services Ltd (NSWWCC 2018), and found that the term ‘medical practitioner’ should be read consistently with Health Practitioner Regulation National Law NSW. This statute differentiates between the ‘medical profession’ and ‘psychology profession’, and accordingly a psychologist is not included in the term ‘medical practitioner’.

Professor Mattick was ‘a registered health professional with the Australian Health Practitioner Regulation Agency and Psychology Board of Australia’ but he was not registered with the Medical Board of Australia, which has the record for all ‘registered medical practitioners’.

As Professor Mattick was not a ‘medical practitioner’, there was no refusal by the worker to submit herself for examination by a ‘medical practitioner’ pursuant to s119(1) of the 1998 Act.

Accordingly, a suspension under s119(3) could not be maintained.

Implications

Insurers can only apply a suspension pursuant to s119(3) in circumstances where a worker has failed to submit to an examination by a medical practitioner. The PIC has adopted a narrow interpretation of the term ‘medical practitioner’ to mean a person who is registered under the relevant law in the medical profession being the Health Practitioner Regulation National Law (NSW) 2009.