Investment Management Group Hotels Resources Pty Ltd

1. Leave to appeal the interlocutory decision of the Member pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted.
2. The Member's Certificate of Determination dated 19 August 2025 is confirmed.
3. The matter is remitted to the same Member of the Commission for determination of the outstanding matters in dispute.

WORKERS COMPENSATION - relationship between the Workers Compensation Guidelines and s 119 of the Workplace Injury Management and Workers Compensation Act 1998 -University of New South Wales v Lee [2021] NSWPICPD 4 considered and applied - no error in not dealing with a submission that was never put - Metwally v University of Wollongong [1985] HCA 28 applied - it is not permissible to read words into the legislation - Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 applied - adequacy of reasons - Sarian v Elton [2011] NSWCA 123; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied

Barrow v Investment Management Group Hotels Resources Pty Ltd (W7243/25, 19 August 2025)

1. Mr Thomas Barrow (the respondent) suffered an injury to his left knee on 10 December 2023 in the course of his employment with Investment Management Group Hotels Resources Pty Ltd (the appellant). The respondent claimed compensation and was paid weekly payments and treatment expenses.
2. On 20 July 2024 the respondent's treating orthopaedic surgeon, Dr Robert Molnar, requested approval from the appellant to perform a left total knee replacement.
3. The appellant issued a Notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 1 October 2024, denying ongoing liability for the injury, including the proposed surgery, on the basis of the opinion of Dr Raymond Wallace, orthopaedic surgeon. Dr Wallace was engaged by the appellant as an independent medical expert to advise on liability for the injury. Dr Wallace determined that the respondent's injury was an aggravation of pre-existing tricompartmental osteoarthritis, but that the aggravation had ceased six weeks after the injury, so that the respondent's symptoms and ongoing treatment were no longer referrable to the injury at work. The respondent requested a review of the appellant's decision pursuant to s 287A of the 1998 Act and provided a report dated 27 May 2025 from Dr Charles New, orthopaedic surgeon, an independent medical expert qualified by the respondent. The appellant maintained its denial of liability in a further Notice issued on 16 June 2025. The reasons expressed for maintaining the denial were that:

"[The appellant] has carefully considered the opinion of Dr Charles H New in the above medical report which contrasts the opinion of evidence outlined in the declinature dated 1 October 2024. [The appellant] prefers the evidence we have relied upon in our notice, however, recognises that given the inconsistencies in opinion between independent medical examiners further information is required to determine the outcome of your request for internal review."[1]

1. The appellant identified the further information it required as a full record of the respondent's treating doctor's clinical records and for the respondent to attend Dr Wallace on 9 July 2025 for a further assessment. On 26 June 2025, the respondent's legal representative wrote to the appellant, advising that as the respondent was not in receipt of weekly payments of compensation, he was not required to attend a further examination by Dr Wallace.
2. The respondent commenced proceedings in the Personal Injury Commission (the Commission) on 26 June 2025, claiming weekly payments and treatment expenses. The dispute was allocated to a Member of the Commission for conciliation and arbitration. At a preliminary conference on 29 July 2025, the Member issued a Direction for the parties to provide written submissions as to whether the respondent was required to attend the further medico-legal examination.
3. The appellant lodged its submissions on 31 July 2025, seeking an order that the respondent comply with the request for a further examination, or an order suspending the right to recover compensation, and a determination that the report of Dr New was inadmissible because the appellant was prejudiced by the respondent's refusal to attend an examination by Dr Wallace.
4. The respondent lodged its submissions on 6 August 2025, disputing that there was a statutory basis for the exclusion of the report of Dr New, asserting that the orders sought by the appellant were ultra vires and were contrary to the objectives of the Personal Injury Commission Act 2020 (the 2020 Act).
5. The Member issued a Certificate of Determination on 19 August 2025 in which she found in favour of the respondent in respect of the orders sought by the appellant.
6. The appellant appeals the Member's determination.

"(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 and enabling legislation without holding any conference or formal hearing."

1. Following a review of the documents in evidence and the submissions made, I formed the view that further submissions were required and in the circumstances that the Member's determination was an interlocutory determination, a formal hearing was the appropriate course in the circumstances. The hearing took place on 18 September 2025 and both parties made further oral submissions.

1. 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.
2. The decision of the Member was an interlocutory decision. Section 352(3A) of the 1998 Act provides that:

"There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute."

1. The appellant submits that it is necessary and desirable that the Commission determine the appeal at this interlocutory stage. The appellant provides a brief background to the dispute and asserts that there is the prospect that if the appeal is successful, then the respondent would be required to submit to the proposed medical examination, following which the entire dispute may resolve, which is a factor that strongly favours the granting of leave. The appellant adds that, if leave was not granted, the matter would proceed which would result in severe prejudice to it in the defence of the claim. The appellant says that this is because the Member did not rule the report of Dr New as inadmissible and the appellant has not had the opportunity for the issues raised by Dr New to be considered by Dr Wallace in circumstances where Dr Wallace's assessment was conducted almost a year before.
2. The appellant adds that the appeal involves an important issue in relation to the operation of s 119(1) of the 1998 Act and the Member's finding, which it says is contrary to the 1998 Act and the Workers Compensation Guidelines (the Guidelines) and raises serious implications which have the potential to impact almost all workers compensation claims.
3. The appellant submits that it is therefore in the interests of justice that leave to appeal the Member's determination be granted.
4. The respondent submits that leave to appeal ought not to be granted and asserts that the appellant's submissions fail to demonstrate that a determination of the appeal is necessary for the proper and effective administration of the dispute because the whole of the matter is prevented from being determined as a result of this appeal being lodged.
5. The respondent contends that it would be more efficient for the Member to determine the whole dispute before an appeal, if warranted, was brought and a determination at this stage would be contrary to the informality and efficiency required by the workers compensation legislation. The respondent says that the appeal and submissions made could not persuade the Commission to grant leave, in circumstances where:

(a) the appeal has resulted in significant delay and further costs;

(b) the appeal is contrary to the proper and effective determination of the dispute, and

(c) the appeal is based upon a misapprehension of the law and its context.

1. Subsection 352(3A) of the 1998 Act precludes the granting of leave to appeal an interlocutory decision unless the Commission is of the opinion that determining the appeal is "necessary or desirable for the proper and effective determination of the dispute".
2. If leave is not granted, the remaining issues will proceed to be determined, and a Certificate of Determination will be issued before the appellant can appeal the decision. This would involve significant delay in the resolution of a preliminary issue, which, if the appeal was successful, would render the further proceedings unnecessary. I note that the delay in the matter is minimal, given that the appeal, which was lodged on 4 September 2025, has been expedited. I have also weighed the factors in favour of granting leave against the public interest in the finality of litigation.
3. Taking those matters into account, I find that the reasons for granting leave outweigh the factors that measure against doing so and I grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the interlocutory decision.

1. The Notice issued pursuant to s 78 of the 1998 Act disputing liability for the respondent's injury was dated 1 October 2024.[2] The Notice advised that:

"You do not present with symptoms or a medical condition that renders you with any total or partial incapacity as a result of a workplace injury. As there is no partial or total incapacity as a result of a workplace injury, you do not have an entitlement to weekly payments of compensation under section 33 of the Workers Compensation Act 1987",

"Any ongoing or further medical or related treatment, hospital treatment and/or rehabilitation services as defined under section 59 are not reasonably necessary as a result of a workplace injury as required by section 60 of the Workers Compensation Act 1987".

1. The Notice referred to the contents of a Certificate of Capacity provided by the respondent's treating general practitioner, Dr Ahmad Afiq Bin Rhazif, an MRI scan dated 19 June 2024, and a report dated 20 July 2024 from Dr Robert Molnar, orthopaedic surgeon (the respondent's treating specialist), requesting approval for surgery.
2. The appellant advised that Dr Raymond Wallace, independent medical examiner, provided a report dated 13 September 2024 in which he opined that the respondent's work-related knee injury, which was a temporary aggravation of a pre-existing degenerative tricompartmental osteoarthritis, had resolved within 6 weeks of the injury. The appellant advised that, on the basis of Dr Wallace's opinion, the respondent's claim for weekly payments of compensation and treatment expenses was declined.
3. On 2 June 2025, the respondent's legal representative sought a review pursuant to s 287A of the 1998 Act of the decision to decline liability for the injury, attaching the report of Dr Charles New, orthopaedic surgeon and advising that if the claim was not accepted within 14 days, the respondent would commence proceedings in the Commission.[3]
4. On 16 June 2025, the appellant issued a further (review) Notice pursuant to s 78 and s 287A of the 1998 Act.[4] The appellant advised that liability for the respondent's injury was declined. The appellant again referred to the evidence of the Certificate of Capacity provided by Dr Afiq Bin Rhazif, the MRI scan dated 19 June 2024, and the report dated 20 July 2024 from Dr Molnar. The appellant summarised the evidence provided by Dr Wallace and that of Dr New.
5. The appellant advised:

"[The appellant] has carefully considered the opinion of Dr Charles H New in the above medical report which contrasts the opinion of evidence outlined in the declinature dated 1 October 2024. [The appellant] prefers the evidence we have relied upon in our notice, however, recognises that given the inconsistencies in opinion between independent medical examiners further information is required to determine the outcome of your request for internal review. As such, we require:

• [The respondent's] full medical record which has been requested from nominated treating doctor, Dr Shiraj Athambawa on 16 June 2025.
• Attendance at an in person independent medical examination with Dr Raymond Wallace on 9 July 2025 at 3:15pm ... .
• Upon receipt of the above information [the respondent] will conduct a further review of your application for a request of internal review."

1. On 10 April 2025, the appellant (employer) wrote to the respondent, noting that liability for the injury had been denied and his claim was closed on 2 December 2024. The appellant advised that the modified duties the respondent had been performing since the injury were no longer viable as it was causing the appellant financial hardship, and as the claim was closed, the appellant required the respondent to provide a clearance to return to his pre-injury duties.

1. On 26 June 2024, Dr Molnar reported to the respondent's general practitioner following a review of the respondent.[5] He referred to the injury at work, noting that prior to the injury the respondent had no difficulty in performing his duties and that following the injury, he developed immediate swelling, pain and restricted range of movement together with intermittent locking of the knee, causing him to have to sit to perform his duties which were basically confined to washing dishes. Dr Molnar performed a clinical examination and reviewed the radiological findings, including the MRI scan. He said:

"In discussing with [the respondent], I suspect that the loose bodies are new and likely the cause of his current disability. However, unfortunately the treatment for his condition will be knee replacement surgery. While I understand the patient had some degree [of] pre-existing knee arthritis, he was still able to cope with his normal activities of daily living and perform heavy manual duties at work without difficulty. I have explained to [the respondent] that I feel that the work-related injury is at least related or an aggravation of his pre-existing condition and proceeding with knee replacement would be appropriate."

1. Dr Wallace provided a report directed to the appellant dated 13 September 2024.[6] He recorded that he had been provided with documents for review which included a letter of instruction from the appellant, a Certificate of Capacity issued by Dr Shiraj Athambawa dated 29 July 2024 and a surgery request form from Dr Molnar.
2. Dr Wallace recorded the respondent's work history, noting that the respondent had been performing the same role on a full-time basis since 2009, which involved serving customers, moving cartons of beer, packing fridges and unpacking and breaking down pallets. Dr Wallace referred to the injury on 10 December 2023 and described the mechanism of injury, causing immediate left knee pain. Dr Wallace said that the respondent experienced persisting left knee pain and reported the injury to the appellant the day after the injury. Dr Wallace noted that the respondent sought treatment from Wellington Hospital but was not seen by medical staff, so he attended his treating doctor, Dr Athambawa, who referred him for physiotherapy and provided him with a knee brace. Dr Wallace further noted that the respondent was provided with hydrotherapy in June 2024 and was referred to Dr Molnar, who recommended operative treatment. Dr Wallace said that the respondent was continuing hydrotherapy once per week and was using Panadeine Forte analgesia.
3. Dr Wallace recorded that the respondent denied any prior left knee injuries although had previously suffered episodic left knee pain that did not require treatment. He said that the respondent reported an overall improvement in the left knee symptoms since the injury. He said, however, that the respondent still complained of stiffness, intermittent mild swelling, aching pain globally, worse with walking more than 200 metres and at night, which was relieved by wearing a brace or lying down, and taking medication. Dr Wallace said that the respondent had experienced one episode of the knee locking but not giving way.
4. Dr Wallace reported that the respondent continued to work on part-time light duties. He described the respondent's duties and the respondent's ongoing difficulties in daily activities.
5. Dr Wallace advised that the radiological investigations were not provided to him but noted the findings of the x-rays and the MRI scan recorded by Dr Molnar.
6. Dr Wallace diagnosed the respondent as suffering a minor temporary aggravation of pre-existing tricompartmental osteoarthritis of the left knee, which had resolved within six weeks of the injury. He opined that the mechanism of injury was not consistent with causing any significant left knee pathology and the pathology evident in the radiological investigations as described by Dr Molnar was consistent with severe pre-existing degenerative tricompartmental osteoarthritis of the joint, aggravated by his "concurrent problem" of morbid obesity. He opined that the respondent's current presentation was due to the pre-existing condition and that the respondent's employment was not a substantial contributing factor to the left knee condition.
7. Dr Wallace expressed the opinion that the respondent did not require any further treatment or medical review for any work-related condition of the left knee, the work injury had resolved, and the respondent did not require a left total knee replacement for any work-related condition. He advised that the respondent was not fit to undergo the surgery because of his current body weight. He considered that the respondent may need the surgery at some stage in the future for treatment of his pre-existing condition.
8. Dr Wallace considered that the respondent had "no current incapacity as a result of any work-related condition of the left knee".[7]

1. Dr New provided a report dated 27 May 2025.[8] He took a history that the respondent had worked for the appellant for 12 years on a full-time basis as a bottle shop attendant. He described the nature of the work as "heavy." He recorded the circumstances surrounding the respondent's left knee injury and the onset of symptoms on 10 December 2023, with pain worsening on the following day. Dr New noted the treatment provided to the respondent, the findings in the MRI scan and the past history of arthritic discomfort in the knee. He further noted that, following the injury, the respondent developed severe pain affecting his daily activities and his ability to walk. He observed that Dr Molnar considered that at some stage, the respondent would require a total knee replacement, but that in the meantime the respondent was undertaking hydrotherapy and was taking minor analgesia.
2. Dr New said that the respondent ceased work for the appellant two weeks prior to the consultation because the appellant advised they had no more work available to him. He assessed the respondent's ability to lift weights as limited to 5 to 8 kilograms if conveniently positioned and noted the effect of pain on his ability to walk, which was limited to five hundred metres, difficulties rising from a sitting position and limitations of one hour when sitting and standing. Dr New noted that the pain also affected the respondent's social life and his ability to drive and observed that the respondent walked with an antalgic gait and wore a brace on his knee.
3. Dr New said that the respondent did suffer a work-related injury which rendered him unable to work to his full capacity. He observed that the respondent had no restrictions on his ability to perform his duties prior to the injury, despite having tricompartmental osteoarthritis of the knee, which had caused only minor intermittent discomfort prior to the work injury. He considered that the respondent's employment was a substantial contributing factor to the injury.
4. Dr New opined that the respondent currently had no capacity for his pre-injury duties and was totally unfit for the type of work for which he was trained or experienced and had no capacity for work on the open labour market. He considered that the respondent would need a total knee replacement, which was reasonably necessary treatment, but would first need to undergo substantial medical review and preferably lose weight, given that he weighed 142 kilograms.
5. Dr New noted that prior to the injury, the respondent worked without restrictions despite the pre-existing osteoarthritis and did not previously wear a knee brace or suffer more than minor pain. He was of the view that the respondent's employment materially contributed to the respondent's presentation.
6. Dr New advised that he had read the report of Dr Wallace and acknowledged that Dr Wallace was entitled to his opinion. He further acknowledged that the respondent did have pre-existing tricompartmental osteoarthritis but noted that the respondent reported only minor pain prior to the injury together with the fact that the respondent previously did not require a brace and worked without restriction. He further noted that the respondent was morbidly obese. He agreed with Dr Molnar in respect of the findings on the MRI scan, and agreed that the respondent's presentation was consistent with the mechanism of injury and the proposed surgery was reasonably necessary.
7. Dr New concluded that, in the non-operative state, the respondent's prognosis was poor and observed that the respondent would require dietary weight loss and rehabilitation following the surgery.

1. Section 119 of the 1998 Act relevantly provides:

"119 Medical examination of workers at direction of employer

(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

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.

"Part 7: Independent medical examinations and reports

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.

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.

All referrals for IMEs are to be arranged at reasonable times and dates, and with adequate notification given to the worker.

The worker must be advised in writing at least 10 working days before the examination takes place. Additional notice should be considered for rural/regional workers.

If a shorter time is required because of exceptional and unavoidable circumstances (for example a need to consider an urgent request for treatment), the reduced timeframe must be agreed to by all parties.

• the specific reason for the examination
• an explanation of why information from the treating medical practitioner(s) or author of the assessment report to the insurer's enquiry was inadequate, inconsistent or unavailable

Subsequent IMEs must meet the reasons for referral for an independent medical examination and can only be conducted in the following situations:

• the employer/insurer has evidence that the worker's injury has significantly changed or resolved, or
• the employer/insurer has a request for, or evidence of, a material change or need for material change in the manner or type of treatment, or
• the worker makes a claim for permanent impairment or work injury damages, or
• the worker requests a review after receiving a notice (issued under section 78 of the 1998 Act) and includes additional medical information that the employer/insurer is asked to consider, or
• the last IME was unable to be completed, or
• it has been at least six months since the last IME required by the employer/insurer, or
• the referrer can provide significant reasoning for the need for a referral in a shorter timeframe. This reasoning must be documented in the claim file and provided in the written advice to the worker regarding the referral.

Subsequent IMEs must be with the same independent medical examiner unless:

• that examiner has ceased to practise (permanently or temporarily)
• the specialty required to assess the injury has changed
• they no longer practise in a location convenient to the worker, or
• both parties agree that a different medical practitioner is required.

The insurer must consider whether the requirement to attend an IME is reasonable in the circumstances.

1. The Member provided a summary of the background of the dispute. She also provided a summary of the submissions made by both parties. She identified the issue requiring determination as:

"... whether [the Commission] should grant the [appellant's] request and issue a direction compelling the [respondent] to undergo a further in-person examination with independent medical expert, Dr Raymond Wallace on 16 September (or an earlier time arranged by the [appellant])."[9]

1. The Member set out s 71(1), s 105(1) and s 119(1)-(4) of the 1998 Act and the relevant matters listed in 7.6 of the Guidelines.
2. The Member said that the respondent had not failed to comply with s 119(1) because he had submitted to one examination by Dr Wallace, after which Dr Wallace provided a report. The Member added that the respondent had not failed to comply with s 119(2) of the 1998 Act by not attending a further examination conducted by Dr Wallace because he was not in receipt of weekly payments since the appellant denied liability in October 2024.
3. The Member observed that s 119(4) of the 1998 Act provides that a worker must not be required to undergo a medical examination under s 119 otherwise than in accordance with the Guidelines or at more frequent intervals prescribed by the Guidelines. The Member noted that the Guidelines provide for a further examination in circumstances where the worker requests a review of a decision declining liability for the claim and includes in the request additional medical information for consideration by the employer or insurer.
4. The Member said that the respondent relied upon a medical report from Dr New, an independent medical examiner dated 27 May 2025. The Member referred to the Notice issued by the appellant pursuant to s 287A of the 1998 Act, in which the appellant sought a further medical examination of the respondent because of inconsistencies between the opinions of Dr Wallace and Dr New.
5. The Member referred to the authority of University of New South Wales v Lee,[10] in which Snell DP said that:

"... 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 the employer'."[11]

1. The Member said that she was not satisfied that the Guidelines impose an obligation on a worker to undergo a medical examination otherwise than in accordance with s 119 of the 1998 Act. She said that s 119(3) provides for the consequences that flow from a worker's refusal to attend a medical examination, which are that the worker's right to recover compensation or weekly payments is suspended until such examination takes place. The Member pointed out that the section does not provide a statutory power to direct the worker to attend the examination and no such statutory power exists.
2. The Member observed that the report of Dr New was relevant to the respondent's claim and that it was open to obtain a supplementary report from Dr Wallace addressing Dr New's opinion.
3. The Member concluded that:

"Having regard to the facts and circumstances of this case as well as the legislation and the practices that the Commission follows, for the above reasons, I am not satisfied that it is appropriate to issue a direction compelling the [respondent] to undergo a further in-person examination with independent medical expert, Dr Raymond Wallace.

Further, I am not satisfied that it is appropriate to order that the [respondent's] right to recover compensation pursuant to s 119(3) of the 1998 Act is suspended until such time as a further examination with Dr Wallace is completed."[12]

1. The Member further concluded that she was not satisfied that there were grounds to exclude the report of Dr New on the basis that it was inadmissible. The Member declined to consider the weight that should be afforded to the report of Dr New at that stage of the proceedings.
2. The Certificate of Determination issued on 19 August 2025 records:

1. The [appellant's] application for a direction that the [respondent] attend a further examination with Dr Wallace on 16 September 2023 [sic, 2025] is declined.
2. The [appellant's] application for an order that the [respondent's] right to recover compensation pursuant to s 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 is suspended until such time as a further examination with Dr Wallace is completed is declined.
3. The [appellant's] application that the report of Dr New be ruled inadmissible is declined."

1. The appellant raises the following grounds of appeal:

(a) Ground One: The Member committed an error of law by her interpretation of s 119 of the 1998 Act;

(b) Ground Two: The Member's reasons were inadequate such that she failed to exercise her statutory function, which is a jurisdictional error, and

(c) Ground Three: The Member failed to respond to a clearly articulated argument raised by the appellant, which was a denial of procedure (sic, procedural) fairness and jurisdictional error.

1. The following summary of submissions includes written submissions in the appeal and the oral submissions made at the hearing of the appeal.

1. The appellant refers to the Member's determination that the respondent did not fail to comply with s 119(1) because he had submitted to an examination by Dr Wallace. The appellant submits that the Member was in error to find that s 119(1) only required the respondent to submit on one occasion. The appellant asserts that it was erroneous to limit s 119(1) in that manner.
2. The appellant further refers to the Member's reasoning that she was not satisfied that the Guidelines place an obligation on the worker to attend a medical examination otherwise than in accordance with s 119 of the 1998 Act and that s 119(4) specifically provides that the Guidelines regulate the requirements for examinations and their frequency "under this section", which was s 119 of the 1998 Act. The appellant asserts that it appears that the Member was giving primacy to s 119 and that she considered that the terms of the section provided no basis under the Guidelines for the appellant to have the respondent reassessed by Dr Wallace.
3. The appellant submits that this is a misstatement as to how s 119 operates in conjunction with the Guidelines. The appellant sets out s 119(1), s 119(4) and 7.6 of the Guidelines and says that the only limitation on s 119(1) is s 119(4), which requires that the worker cannot be obligated to undergo a medical examination "otherwise than in accordance with" the Guidelines. The appellant says that the applicable Part of the Guidelines is 7.6 and submits that the "reasons for referral" is a reference to Part 7.1, which provides the circumstances in which it is reasonable that an employer or insurer arrange an independent medical examination, as defined in the introduction to Part 7.
4. The appellant refers to the decision in Lee, in which Snell DP said that the Guidelines control the manner of operation of s 119.
5. The appellant submits that the dispute before the Commission raises issues pertaining to the respondent's capacity for work and the need for treatment, so that the further assessment complies with the Guidelines because the previous assessment was more than 6 months prior to this assessment (Part 7.6), and an assessment and report were necessary in order to address those issues (Part 7.1). The appellant asserts that when s 119(1) is read together with the Part 7.6 of the Guidelines and, applying Lee, once the reasons for referral are satisfied, the worker is a required to attend a further assessment and in the event of a failure to attend, s 119 provides for the consequences.
6. The appellant says that the Member's construction of s 119(1) unjustifiably requires the words "must ... submit himself or herself for only one medical examination by a medical practitioner ..." to be read into the section, contrary to the High Court authority of Taylor v The Owners - Strata Plan No 11564.[13] The appellant submits that such a construction would make Part 7.6 of the Guidelines otiose, which is an outcome that should be avoided. The appellant says that s 119 in its entirety, together with the Guidelines, contemplates a further independent medical examination, precisely as in this case where the respondent relied upon new information in a report from an independent medical examiner in support of his application for a review of the appellant's decision to decline the claim. The appellant contends that the balance between requiring the respondent to attend a medical examination, and multiple unnecessary examinations is achieved by meeting the necessary preconditions provided for in the Guidelines and not by limiting the power to a single assessment.
7. The appellant asserts that if the Member's construction was correct, it would lead to undesirable consequences, such as where there is a need for assessment from multiple specialists from various specialties. The appellant says that that requirement would be prohibited if the Member's construction was accepted.
8. The appellant submits that the Member's observation that "the Guidelines operate to confer an obligation on a worker to submit to an examination by a medical practitioner otherwise than in accordance with s 119 of the 1998 Act"[14] is contrary to the binding authority of Lee. The appellant says that the Guidelines outline how s 119 is to operate, and do not mean that a worker must submit to an examination "otherwise than in accordance with s 119."[15] The appellant asserts that those were the terms used by the Member which points to the Member having applied the wrong test and the Member thus committed an error of law.
9. The appellant sought to clarify that the appeal concerns the operative effect of s 119(1) of the 1998 Act, specifically whether, in the context of the Guidelines, the section contemplates only one assessment. The appellant submits that it is erroneous to read the section as providing that, once the assessment under the section has occurred, the section has no more work to do. The appellant submits that s 119 operates with reference to the Guidelines, which clearly provide for further assessments, including in the circumstances of this case. The appellant submits that the appeal is not about the power to compel the respondent to attend the assessment.
10. The appellant points to its submissions made to the Member and concedes that it requested an order to attend a further medical assessment be made, but what it is actually seeking is for the respondent to comply with the request for a further examination and if that does not occur, then the worker's entitlements should be stayed by not listing the matter for conciliation and arbitration until there is compliance.
11. The appellant concedes that s 119(2) does not apply and this case is not a case that falls within s 71 of the 1998 Act. The appellant confirms that it relies on s 119(1) and the implications that follow a failure to attend the medical examination contained in s 119(3). The appellant submits that there is no limitation in the terms or scope of s 119. The appellant refers to the Member's conclusion that the respondent attended one medical examination with Dr Wallace, so he had not failed to comply with s 119(1) and submits that the Member clearly was of the view that the section had the effect of requiring one consultation only. The appellant says that on a plain reading of the section and taking into account the Guidelines, that conclusion was impermissible.
12. The appellant indicates that Part 7.6 requires the subsequent referral to meet the reasons, which are undoubtedly the reasons provided in Part 7.1, which protect against unduly burdensome examinations, and once the reasons for referral are satisfied, Part 7.6 also requires that independent medical examination can only occur in the prescribed situations. The appellant says that the prescribed situation that the evidence shows that the worker's injury has "significantly changed or resolved" arguably applies to this case because of the passage of time, but in any case the situation applies where "the worker requests a review after receiving a notice (issued under s 78 of the Act) and includes additional medical information that the employer/insurer is asked to consider."
13. The appellant submits that the report of Dr New dated 27 May 2025 is new evidence. The appellant describes the decision pursuant to s 287A of the 1998 Act dated 16 June 2025 as a review decision that included a term that the respondent be re-assessed by Dr Wallace, which never eventuated. The appellant asserts that it is impermissible to read into s 119(1) the limitation of there being only one assessment. The appellant says that the Member erred in interpreting the subsection as she did.
14. The appellant asserts that the decision made in the review of the s 78 Notice was contingent upon and qualified by a subsequent report of Dr Wallace, and the decision would be reconsidered upon receipt of the report. The appellant asserts there was nothing else that the appellant could do because of the timeframe for the examination to occur.
15. The appellant refers to the provision in Part 7.6 that a re-assessment is permissible if it had been at least six months since the first assessment.
16. The appellant further refers to the Member's reasons at paragraph [21], in which the Member quoted the provision in Part 7.6 that allows for a further examination where there is new evidence provided when seeking a review under s 287A. The appellant reiterates that the Guidelines control the operation of s 119, the Guidelines contemplated further medical assessments, and it was therefore erroneous for the Member to conclude that s 119(1) allowed for only one medical assessment.
17. The appellant referred to the Member's observation that she was not satisfied that the Guidelines conferred an obligation to submit to an examination otherwise than in accordance with s 119 of the 1998 Act. The appellant accepted that observation but says that it remains that s 119(1) does not limit the number of examinations that can take place.
18. The appellant describes s 119(1) as "the power", and the alternate power lies in s 119(2), which does not apply in this case. The appellant says that the consequence of a failure to comply is set out in s 119(3) and the power is limited by s 119(4) and by the limitations imposed in the Guidelines. The appellant asserts that the Guidelines do not limit the medical examinations to only one examination.
19. The appellant submits that proceedings were commenced, but had not commenced when the respondent sought a review under s 287A. The appellant asserts that there is no authority, reason or principle to say that a worker is under no obligation to comply with a request once liability is denied. The appellant says that such a proposition does not follow when the Guidelines permit an assessment when there is a review under s 287A after liability has been denied. The appellant adds that the respondent's proposition that the opportunity to have the worker re-examined must be pursued before liability is denied has no basis in legislation and does not sit with the fact that the requirement for a decision to be made is subject to time limits.
20. The appellant refers to Part 7.6 and the requirement that the information from the treating practitioner is inadequate, unavailable or inconsistent. The appellant says that the claim involves a claim for weekly payments and a work capacity decision. The appellant asserts that it is entirely inappropriate to confine the evidence to what the treating specialist has to say because the treating specialist's role is different to that of an independent medical expert, and there is a distinction between issues arising from the legislation and comments limited to medical matters. The appellant says that the report of Dr Molnar does not deal with issues arising from the Act (presumably the 1987 Act), such as the respondent's capacity to earn and matters relevant to the application of s 32A of the 1987 Act. The appellant asserts that it is always appropriate to have those matters considered (or reconsidered) by a medico-legal expert.
21. The appellant submits that the information from the treating medical practitioners is inadequate because comment on those matters is not the role of the treating specialist. The appellant says that a treating specialist may well be qualified to comment on whether medical expenses are reasonably necessary but in respect of weekly payments or a work capacity decision, it is inadequate to obtain an opinion from a treating doctor when there may be a suite of information that is not made available to that treatment provider.
22. The appellant also submits that there was an inconsistency in the evidence, which was sufficient to enable a further examination by Dr Wallace. The appellant says that there is commentary about ongoing symptoms, the respondent's disability and in relation to causation that the treating doctor provides that is different to Dr Wallace's observations which is an inconsistency that cannot be resolved and so it is not inappropriate to re-refer the respondent to Dr Wallace. The appellant submits that the opinions [without reference to whose opinions] are diametrically opposed.
23. The appellant submits that the matters to be addressed include the diagnosis of injury, the necessary treatment, the capacity for pre-injury duties, and the description of suitable duties, so that the reasons for referral are satisfied and it is appropriate to request a re-examination by Dr Wallace. The appellant concedes that Dr Wallace has dealt with those matters, however, says that there is new information which needs to be addressed, such as Dr New's evidence that the respondent was totally unfit for work.

1. The respondent asserts that the arguments raised by the appellant in the appeal are at complete odds to "how the matter was argued at the preliminary conference", when the appellant sought an order to compel the respondent to attend a further assessment by Dr Wallace. The respondent says that the appeal raises an issue in respect of s 119 of the 1998 Act. The respondent cites Metwally v University of Wollongong[16] as authority to say that the appellant is bound by the conduct of his case and that it is not open for the appellant to raise new issues in the appeal.
2. The respondent submits that the Guidelines provide a basis upon which a medical assessment can be made, but they do not supersede s 119. The respondent adds that the appellant has omitted important matters referred to in the Guidelines, such as in Part 7.1, which says that a referral is appropriate when information from the treating medical practitioners is inadequate, unavailable or inconsistent and the person making the referral is unable to resolve the issue directly with the practitioners. The respondent contends that the referral in these proceedings does not satisfy those requirements, and in fact, the appellant failed to follow the Guidelines so that it is not entitled to a further assessment.
3. The respondent points out that the referral for medical assessment was sought for the sole purpose of Dr Wallace considering the opinion of Dr New, which was not a proper basis for the referral. The respondent says that the referral has nothing to do with the treating medical evidence, which was a requirement in the Guidelines.
4. The respondent asserts that the appellant's reliance upon Part 7.6 is flawed. He submits that there might be a circumstance in which a further medical assessment is sought before making a decision, however, this is not such a circumstance. The respondent submits that the appellant reviewed the s 78 Notice and the Notice was upheld. The respondent asserts that, once that decision is made, the opportunity for a further medical assessment ceases. The respondent refers to the covering letter dated 16 June 2025 directed to the respondent that informed him that the review of the decision to decline liability had been completed and the decision was confirmed. The respondent says that the position might be different if the review decision is pending or subsequent medical evidence might influence the decision, but those were not the circumstances of this case, where a denial had already been made.
5. The respondent adds that the manner in which the Notice was framed was not consistent with the submission that a referral could be conducted where six months had elapsed. The respondent says that the Notice expressed a concluded view while also asking the respondent to attend another assessment. The respondent refers to s 71(1) of the 1998 Act, which requires the respondent to fully co-operate with the insurer liable for the claim, and s 71(3), which provides that the duty in s 71 to co-operate only applies until the proceedings are commenced. The respondent asserts that he was under no obligation to comply with the appellant's request once the appellant disputed liability for the claim and it is uncontroversial that the claim was denied. The respondent adds that proceedings in the Commission had already commenced.
6. The respondent contends that there was no breach of s 119(1) because the subsection does not contemplate a further assessment and he had already been assessed by Dr Wallace when he gave notice of his injury. The respondent says that s 119(2) provides for a worker to be re-examined from time to time, but that only applies to a worker who is in receipt of weekly payments, and the respondent's weekly payments ceased in October 2024.
7. The respondent submits that, in the proceedings before the Member, the appellant sought an order from the Member compelling the respondent to attend a re-examination. The respondent asserts that the argument put to the Member was substantially different to the issues raised in the appeal.
8. The respondent concludes that, while there is an opportunity to seek a further assessment when a review of a decision to decline liability is sought, the opportunity must be taken before the decision to decline liability is upheld.
9. The respondent submits that it is clear that the Member was asked to determine whether she could compel the respondent to attend the medical appointment. The respondent says that the decision must be considered in the context of the issue raised before her. The respondent says that the arguments on appeal have substantially expanded the matters that he says probably ought to have been run before the Member. The respondent indicates that even in the submissions on appeal, the appellant seeks a direction that the respondent is to attend a medical examination. The respondent says that the case on appeal has shifted to the question of whether there was an inadequacy in the evidence, which would provide a basis for a referral for further medical examination.
10. The respondent submits that in any event, s 119(4) provides that a worker must not be required to submit to a medical examination otherwise than in accordance with the Guidelines. The respondent asserts that the Guidelines, therefore, are the central basis of the dispute. The respondent refers to Part 7.1 of the Guidelines and points out that the referral is appropriate where the information from the treating medical practitioner is inadequate, unavailable or inconsistent. The respondent emphasises that the information must be from a treating doctor, and the referrer must be unable to resolve the problem directly with practitioners.
11. The respondent says that there is no evidence at all about any attempt to resolve the problem. The respondent adds that none of the reasons set out in Part 7.1 are satisfied.
12. The respondent submits that the appellant is now relying upon the "inadequacy" of the information, when the review Notice issued pursuant to s 287A of the 1998 Act only referred to "inconsistency" in the opinions between Dr Wallace and Dr New, which was the basis for the referral. The respondent asserts that, in circumstances where Dr Wallace advised that he did not need to review the respondent again, it is unclear what inconsistency required a physical assessment by Dr Wallace in order for Dr Wallace to address that inconsistency.
13. The respondent submits that it would be sufficient for Dr Wallace to address the issues by providing his opinion on the basis of the documentary evidence.
14. The respondent says that Part 7.1 is the pre-requisite for a further referral and must be satisfied. The respondent asserts that on the basis of the evidence before the Commission and the reasons put forward by the appellant, Part 7.1 cannot be satisfied.
15. The respondent contends that, even if the reasons were satisfied, the referral can only proceed in the situations listed in Part 7.6, and submits that none of those situations fit the reason put forward by the appellant to the respondent.
16. The respondent notes that the appellant advised that it was operating under strict time frames and that was the reason for denying the claim. The respondent refers to and quotes from the decision of Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services,[17] where Roche DP observed:

"a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved"[18] (emphasis in original).

1. The respondent asserts that the matters referred to in Part 7.1 have already been addressed by Dr Wallace. The respondent says that the reason for the referral was not documented on the claims file, the letter directed to the respondent dated 16 June 2025 did not provide any explanation as to why the examination was required, and it was clear, at least in the Member's mind, that the reason for the examination was to address the inconsistency between the opinion of Dr New and that of Dr Wallace. The respondent observes that it is unclear what other reason the appellant may have had for arranging the further examination, but if there was some inadequacy, it was matter for the appellant to try to resolve that issue with the doctor.
2. The respondent submits that the operation of s 119(1) is limited to one assessment because the section is predicated upon the giving of notice of injury. The respondent says that the appellant can then arrange further assessments pursuant to s 119(2), but only if the respondent is in receipt of weekly payments, so that if the respondent is not receiving weekly compensation, then there is no power to compel the respondent to attend an examination. The respondent adds that the request for the respondent to attend a further medical examination was wholly inconsistent with the legislation and with the Guidelines.

1. The appellant refers to the decision of Snell DP in BGV v Waverley Council,[19] in which Snell DP referred to and quoted from the authorities of Beale v Government Insurance Office (NSW),[20] Mifsud v Campbell,[21] and Pollard v RRR Corporation Pty Ltd[22] in respect of the duty to give reasons. The appellant also quotes from Ming v Director of Public Prosecutions[23] and refers to the observations by Kirk J in Lazicic v Rossi,[24] Snell DP in Absolute Aquarium Products Pty Ltd v Taylor,[25] and Parker SC ADP in Yarrawonga & Border Golf Club Ltd v Williamson.[26]
2. The appellant submits that the Member concluded that s 119(1) permits only one assessment but failed to provide any reasons for that conclusion, or how that conclusion was consistent with the Guidelines, particularly Part 7.6. The appellant asserts that there is an inconsistency between the Member's conclusion and the further assessment criteria provided for in Part 7.6 of the Guidelines. The appellant observes that the task of statutory construction is to avoid any inconsistencies.
3. The appellant points to the Member's reasoning at [27], where she referred to "the facts and circumstances of this case as well as the legislation and the practices that the Commission follows", and submits that it was not clear what "practices" the Member relied upon. The appellant adds that the Member's observation that "it was not appropriate to issue a direction compelling the [respondent] to undergo a further assessment" suggested that s 119(1) of the 1998 Act did not "operate in the absolute manner the Member indicated." The appellant says that if s 119(1) only allowed for one assessment, once the assessment took place it was not open to the Member to issue such a direction. The appellant asserts that this is a further example of the inadequacy of the Member's reasons.
4. The appellant points to the Member's reference to having given regard to "the facts and circumstances of this case"[27] and queries what those facts and circumstances were. The appellant acknowledges that the Member's reasons should not be read with an eye finely tuned to error but submits that a review of the Member's reasons discloses that the Member did not provide any basis upon which that conclusion was reached and did not identify the "facts and circumstances". The appellant adds that the Member also referred to the "practices" that the Commission follows, without identifying those factors or circumstances or what practices supported her conclusion that she was not satisfied that it was appropriate to issue a direction compelling the respondent to attend a re-assessment by Dr Wallace. The appellant submits that the "practices" are to follow the legislation and the Guidelines.
5. The appellant submits that while there is no power to compel a worker to attend a medical examination, that is not the point. It submits that the point is that there are no reasons why the Member reached her conclusion in respect of s 119(1). The appellant refers to the respondent's reliance on Leuzzi v Primo Concrete Pty Ltd.[28] The appellant asserts that the reasons are always material to the outcome because they assist the party to understand how a conclusion was reached and in this case, the issue was how s 119(1) operated, which was clearly relevant.

1. The respondent contends that the Member's reasons were correct and appropriate. The respondent refers to the Member's reasoning that she was not willing to compel him to attend an appointment and submits that her reasons were clear, in that there is no power to compel a worker to attend an appointment at the request of the insurer/employer. The respondent asserts that it is unclear what other reasons the Member could have given for refusing to compel the respondent to do so in the circumstances where the legislation and the Commission's practices do not provide for it. The respondent says that it was not appropriate for the Member to make such an order.
2. The respondent submits that, even if the reasons were deficient, that did not constitute a material error. The respondent refers to Leuzzi in which I determined that the Member's failure to consider evidence was not a material error and thus no error was established. The respondent asserts that the Member's reasons were sufficient, and the ultimate determination was correct, however, even if the reasons were not sufficient it was immaterial to the outcome.

1. The appellant submits that the failure to address an argument that was properly raised amounts to a denial of procedural fairness and constitutes jurisdictional error, citing various authorities in support of that submission.[29]
2. The appellant submits that it was always the appellant's case that there is a power to have the benefit of more than one medical assessment, and the case was clearly run on the basis that a further medical examination was permitted. The appellant says that the issue is important as it relates to the effects of s 119 of the 1998 Act and it is not a new issue. The appellant contends that it could not be aware that an argument has not been addressed until the decision is made known.
3. The appellant submits that the Commission is required to engage in a fact-finding process and reach a conclusion as to which medical opinions are preferred. The appellant says that without the medical examination, the appellant cannot meet the respondent's case.
4. The appellant says that it does not seek an order that the respondent attend the medical examination but seeks to have the matter remitted to a member for further determination.

1. The respondent asserts that this ground of appeal is unmeritorious. He contends that the argument put to the Member was not "clearly articulated". The respondent asserts that the argument as to how s 119 operates was not the argument put to the Member. The respondent contends that the argument put to the Member was that the Commission had jurisdiction to "compel" him to attend an appointment with Dr Wallace, when there was no statutory power to do so. The respondent points to the appellant's concession to the Member that there was no statutory power to direct him to attend a medical appointment, failing which his entitlement to recover compensation was suspended.
2. The respondent contends that the order sought did not exist and was ultra vires, the appellant's argument was not clearly articulated and there was no basis for the relief sought. The respondent concludes that the Member's response and reasoning were appropriate.

1. The appellant responded to the respondent's submissions. The appellant refers to the respondent's suggestion that the case now advanced by the appellant was not argued before the Member and submits that if that is the case, it seeks leave to raise and argue the case. The appellant asserts that there can be no prejudice to the respondent and the interpretation of s 119(1) is important.
2. The appellant asserts that the respondent mischaracterises its submissions. The appellant refers to its submissions made that:

(a) the Guidelines provide for the appellant to be permitted to arrange a further medical examination;[30]

(b) the appellant should be entitled to have the respondent medically examined and the Guidelines are unequivocal as to the circumstances in which an examination is required;[31]

(c) section 119(1) provides that the worker must submit to an examination;[32]

(d) section 119(1) should not be read down to allow only one examination,[33] and

(e) section 119(4) indicates that the respondent may be required to submit himself to an examination at intervals prescribed by the Guidelines.[34]

1. The appellant submits that the same point can be taken against the respondent in that some of the matters raised by the respondent in the appeal hearing were not relied on in resisting the appellant's case at first instance.
2. The appellant asserts that, in any event, I would be satisfied that there was error in the interpretation of s 119 and that error is sufficient to require the matter to be remitted for re-determination. The appellant adds that Part 7.1 provides examples and is not an exhaustive absolute list of reasons.
3. The appellant refers to the "new information" required and points out that Dr Wallace referred to the respondent's work capacity and took the history that the respondent was working on a part-time basis 3 hours per night, 7 days per week washing crockery but Dr New recorded that the respondent was not working, and was wearing a brace on his knee, which were relevant criteria in assessing work capacity.

1. The appellant seeks to have the Member's Certificate of Determination set aside and the matter remitted to the Member to be determined according to law. The respondent seeks to have the appeal dismissed.

1. The respondent protests that the matters raised by the appellant in the appeal were not the subject of submissions to the Member. The appellant's submissions to the Member were that:

(a) it was conceded that there was no statutory power for the Member to order that the respondent (the applicant below) attend a medical examination;

(b) the respondent did not fully cooperate with the insurer and thus contravened subs (2) and (4) of s 119;

(c) to not allow the appellant a further in-person review with Dr Wallace would be in direct contravention of the Guidelines and, by extension, s 119 of the 1998 Act;

(d) the respondent provided no adequate reason for non-attendance at the appointment with Dr Wallace;

(e) the appellant was not seeking to 'delay' the proceedings by requesting a further examination by Dr Wallace;

(f) it should be entitled to have the respondent re-examined by Dr Wallace;

(g) it would be prejudiced if the report of Dr New was admitted into evidence without giving Dr Wallace the opportunity to examine the respondent and comment on the evidence provided in the request for review, and

(h) it would be prejudiced by proceeding without the further evidence sought.

1. The Notice issued pursuant to s 287A of the 1998 Act indicated that the appellant relied upon the provision in Part 7.1 of the Guidelines that the reason for the medical assessment was that there were inconsistencies in the opinions of the independent medical examiners, in circumstances where the respondent included additional medical evidence in the internal review (Part 7.6 of the Guidelines).
2. At the oral hearing of the appeal, the appellant sought to expand on its submission that medical evidence was "inconsistent" by also relying on the assertion that the medical evidence was "inadequate." It is not appropriate to seek to raise a new issue on appeal without first seeking leave to do so. It is even less appropriate to raise a new issue in proceedings at the eleventh hour without giving prior notice of that intention and after written submissions had been filed by each party. Section 352(5) of the 1998 Act provides that an appeal is limited to the identification of error of fact, law or discretion and to the correction of any such error. The appellant is bound by the conduct of its case and Member cannot be said to have erred by not dealing with a submission that was never put to her.[35]
3. In addition, the appellant made oral submissions asserting that an independent medical assessor is better placed than a treating doctor to comment on such matters as incapacity and matters addressing s 32A of the 1987 Act. Those submissions are rejected and leave to raise that argument is refused.
4. The respondent complains that the appeal raises an issue in respect of s 119 of the 1998 Act which was not argued before the Member. The Member did in fact deal with s 119 in the process of determining whether and in what circumstances the respondent was required to attend Dr Wallace for a further examination. The respondent has had the opportunity to reply to the appellant's submissions. I am of the view that the matters raised in both parties' submissions are germane to the Member's conclusion that she was not satisfied that the Guidelines confer an obligation on a worker to attend for examination by a medical practitioner otherwise than in accordance with s 119 of the 1998 Act, and that the Guidelines operate to regulate the requirements for and frequency of examinations under s 119.[36]
5. On that basis, the parties' submissions in respect of s 119 are taken into account for the purpose of determining whether the Member erred in her interpretation of s 119 of the 1998 Act (Ground One of the appeal).

Ground One: The Member committed an error of law by her interpretation of s 119 of the 1998 Act

1. The appellant asserts error on the part of the Member in respect of her conclusion that subs (1) of s 119 is limited to attendance on one occasion only. Section 119(1) requires that a worker who gives notice of an injury must attend for medical examination if required by the employer. Subsection (2) provides for examinations "from time to time" where the worker is in receipt of weekly payments and subs (4) prohibits a requirement to attend where the examination is otherwise than in accordance with the Guidelines. The Guidelines impose requirements for the examinations and mandatory obligations on the insurer. I agree with Snell DP's observation in Lee 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."[37]
2. Subsection (1) does not talk about "from time to time" or "further" examinations. The subsection must be read in its context, which includes subsections (2) and (4) and the reasons and circumstances provided for in the Guidelines. On a plain reading of subs (1), it simply requires the worker to attend for examination when a claim for compensation is made. It does not contemplate multiple medical assessments, as asserted by the appellant, and as submitted by the respondent, if it were to be interpreted as the appellant asserts, then (at least) subs (2) would have no work to do. In order to accept the appellant's submission that s 119(1) permits further assessments, it would be necessary to read additional words into the section, which is impermissible.[38] I reject the appellant's submission.
3. The appellant submits that the Member appears to have given "primacy" to s 119 and appears to have considered that the terms of the section provided no basis under the Guidelines for the appellant to have the respondent reassessed. The Member's reasoning was as follows:

"I am not satisfied that the Guidelines operate to confer an obligation on a worker to submit to an examination by a medical practitioner otherwise than in accordance with s 119 of the 1998 Act. To the contrary, s 119(4) of the 1998 Act, specifically provides that the Guidelines operate to regulate the requirements for and frequency of examinations 'under this section', namely s 119 of the 1998 Act."

1. The Member's reasoning discloses no error. She was clearly cognisant of how the Guidelines operated to control the manner of operation of s 119, as observed in Lee.
2. The appellant submits that the dispute raises issues as to the respondent's capacity for work and need for treatment, and the further assessment was required because it had been more than six months since the respondent was previously assessed by Dr Wallace, thus complying with Part 7.6 of the Guidelines. Again, this was not a substantive submission made to the Member. The appellant submitted to the Member that it had been over a year since the respondent was examined by Dr Wallace but did not extrapolate further or make any reference to the Guidelines as to why that was relevant. Nor did it feature as a reason in the Notice issued pursuant to s 287A of the 1998 Act. Part 7.5 of the Guidelines requires that the worker must be advised in writing of the referral and the specific reason for the examination.
3. In any event, s 119(4) provides that a worker must not be required to submit himself or herself for examination by a medical practitioner under section 119 otherwise than in accordance with the Guidelines. The appellant correctly concedes that Part 7.6 of the Guidelines requires the subsequent referral to meet the reasons for referral set out in Part 7.1. Compliance with the Guidelines is mandatory. The reason for referral to an independent medical examiner in Part 7.1 is that:

"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."

1. The reason for the further referral put forward by the appellant was that the evidence provided by Dr New was inconsistent with that of Dr Wallace. That does not constitute an inconsistency with the information from the treating medical practitioner, or for that matter any inadequacy or unavailability of the treating practitioner's information. The treating general practitioner's clinical notes were annexed to the appellant's reply, together with Certificates of Capacity issued by Dr Shiraj Attambawa. The informative report by Dr Molnar dated 26 June 2024 directed to the respondent's general practitioner as well as the request by Dr Molnar for approval to perform the surgery were also in evidence in the ARD and thus were clearly available.
2. At the oral hearing, I asked the appellant to identify where the purported inconsistency had been explained to the respondent, noting that Part 7.5 of the Guidelines requires that the worker must be advised in writing of the referral and that:

• the specific reason for the examination
• an explanation of why information from the treating medical practitioner(s) or author of the assessment report to the insurer's enquiry was inadequate, inconsistent or unavailable."

1. The appellant pointed to the letter directed to the respondent dated 16 June 2025, in which it advised the respondent that the medical examination was necessary because of the inconsistency between the opinions of the two independent medical examiners.
2. The appellant has not identified where the Guidelines provide that a further assessment is permitted in circumstances where the opinions of two independent medical examiners differ. While the circumstances set out in Part 7.6 identify that an examination may take place if a worker submits new medical evidence in an application for review under s 287A of the 1998 Act, the reasons set out in Part 7.1 must also be satisfied. The reason for the re-assessment does not fall within the ambit of Part 7.1 and the required information listed in Part 7.1 has already been addressed by Dr Wallace. Dr Wallace formed the view that the respondent had recovered from the effects of the injury, any incapacity suffered by the respondent was not attributable to the injury and further medical assessment was not required. It is difficult to understand what additional information Dr Wallace could provide following an in-person medical examination that could not be cured by the appellant simply requesting Dr Wallace to provide a supplementary report in response to the opinion of Dr New.
3. In summary, it is apparent from the above that the request for re-examination did not comply with the Guidelines, resulting in the request falling foul of s 119(4). Section 119(4) provides that a worker must not be required to submit himself or herself for examination by a medical practitioner under that section otherwise than in accordance with the Guidelines. The reason for the referral for a further examination is not provided for in Part 7.1 of the Guidelines (that is, that Dr New's evidence was inconsistent with that of Dr Wallace). The referral is therefore prohibited by s 119(4) of the 1998 Act. The Member concluded that she did not consider it appropriate to direct the respondent to attend the examination and that it was not appropriate to suspend the respondent's entitlement to compensation. She arrived at those conclusions by giving consideration to s 119 and the Guidelines and (correctly) determining that the appellant had not complied with s 119 and the Guidelines.
4. There was no error in that approach, and this ground of appeal fails.

Ground Two: The Member's reasons were inadequate such that she failed to exercise her statutory function, which is a jurisdictional error

1. The appellant submits that the Member failed to give any reasons for concluding that s 119(1) of the 1998 Act only permitted one assessment or how that conclusion accorded with the Guidelines and asserts that the Member's conclusion was inconsistent with the criteria listed in Part 7.6 of the Guidelines.
2. The appellant points to the Member's reasoning at [27] where she observed:

"Having regard to the facts and circumstances of this case as well as the legislation and the practices that the Commission follows, for the above reasons, I am not satisfied that it is appropriate to issue a direction compelling the [respondent] to undergo a further in-person examination with independent medical expert, Dr Raymond Wallace."

1. The appellant adds that the Member's conclusion that it was not appropriate to direct the respondent to attend the medical examination was inconsistent with the Member's determination that s 119(1) only allowed for one examination. The appellant says that the Member did not provide any basis upon which that conclusion was reached and did not identify the "facts and circumstances" or the "practices" of the Commission. The appellant asserts that whether the Member did or did not have the power to compel the respondent to attend the examination is not the point and asserts that the Member failed to provide reasons for her conclusion in respect of s 119(1).
2. I do not accept that there was any inconsistency between the Member's conclusion that s 119(1) only allowed for one examination and her determination that it was not appropriate to issue a direction that the respondent attend the examination. The Member clearly declined to issue such a direction to attend a further examination (a final determination that the appellant does not cavil with) because s 119(1) did not provide for a further referral.
3. The respondent asserts that the Member's reasons were sufficient, and the ultimate determination was correct, however, even if the reasons were not sufficient it was immaterial to the outcome, relying on Leuzzi as authority for that proposition.
4. The appellant submits that the reasons are always material to the outcome.
5. I have determined in Ground One of this appeal that the Member was correct to conclude that s 119(1) did not provide for further medical examinations and that the appellant's reason for referral for a medical examination did not comply with s 119(4) of the 1998 Act and the Guidelines. The reasons provided by the Member in support of her determination about s 119 were sufficient to support the Member's ultimate conclusion that it was not appropriate for her to issue the directions sought by the appellant.
6. The appellant refers to the Member's reasoning in which the Member referred to the "facts and circumstances" of the case, the legislation and the "practices" that the Commission follows and asserts that it was unclear as to what "practices" the Member was referring. The facts and circumstances of this case, together with the applicable legislation were more than adequately set out by the Member in her reasons. At [29] of her reasons, the Member observed that Dr Wallace could provide a supplementary report addressing the matters raised by Dr New, which was a submission made by the respondent and is common practice in the Commission. I note there is no evidence from Dr Wallace as to any impediment to that process.
7. In its oral and written submissions, the appellant observed that the Member had no power to make the order sought, which was to direct the respondent to attend the medical examination and the Member found accordingly. Even if the Member's reasoning was deficient, it is unclear how that deficiency sits with an allegation of error on the part of the Member in declining to make the order sought. In those circumstances any insufficiency in her reasons could not be material to the outcome and is not sufficient to disturb the Member's final determination.
8. It is always necessary to read a primary decision-maker's decision fairly.[39] In Beale, Meagher JA considered the purpose of providing reasons and said that when considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that reasons need not be lengthy or elaborate.[40]
9. Meagher JA added that the absence of sufficient reasons often leads to "a real sense of grievance that a party does not know or understand why the decision was made".[41]
10. The Member's reasons, when considered as a whole, were in my view sufficient to discharge her duty and promote a proper understanding of why she reached her conclusions. I do not consider that the reasons were so deficient that a party could not understand why the decision was made. This appeal ground is rejected.

Ground Three: The Member failed to respond to a clearly articulated argument raised by the appellant, which was a denial of procedure (sic, procedural) fairness and jurisdictional error

1. The appellant asserts that the Member's failure to provide adequate reasons caused her to fail to grapple with the submissions made by the appellant about how it contends s 119 operates because of her failure to provide adequate reasons.
2. The appellant says that its case was that there is a "power" to have a further assessment and that a further medical assessment was permissible in this case. It submits that without the further medical examination it cannot meet the respondent's case.
3. The respondent contends that the order sought (that the respondent attend the medical examination) could not be made and was ultra vires, the appellant's argument was not clearly articulated and there was no basis for the relief sought. The respondent concludes that the Member's response and reasoning were appropriate.
4. The appellant refers to its submissions raised, summarised at [115] above. The appellant does not identify which of those submissions were not dealt with by the Member. The Member considered:

(a) the application of the Guidelines and the circumstances in which a further referral can take place;

(b) whether the appellant was entitled to have the respondent medically re-examined;

(c) whether s 119(1) provided a vehicle for a further examination or whether it permitted only one examination, and

(d) the application of s 119(4) not this case.

1. In the absence of any indication as to a particular submission that was not addressed, the ground of appeal must fail.

1. The appellant has failed to establish error on the part of the Member, and the appeal is dismissed. In the circumstances of this case, the appellant is not entitled to have the respondent re-examined by Dr Wallace.
2. The appeal was interlocutory in nature, and the substantive rights and liabilities of the parties are yet to be determined. It is therefore necessary for the dispute be remitted and I consider it appropriate that the remittal is back to the same Member for further determination.

1. The Member's Certificate of Determination dated 19 August 2025 is confirmed.
2. The matter is remitted to the same Member of the Commission for determination of the outstanding matters in dispute.

[1] Reply to Application to Resolve a Dispute (reply), p 8.

[2] Application to Resolve a Dispute (ARD), pp 17-19.

[7] Dr Wallace's report, p 10, ARD, p 22.

[9] Barrow v Investment Management Group Hotels Resources Pty Ltd (W7243/25, 19 August 2025) (reasons), [13].

[10] [2021] NSWPICPD 4 (Lee).

[13] [2014] HCA 9 (Taylor), [35].

[15] Appellant's written submissions, [40].

[17] [2007] NSWWCCPD 227 (Mateus).

[19] [2024] NSWPICPD 2.

[20] (1997) 48 NSWLR 430 (Beale).

[21] (1991) 21 NSWLR 725.

[22] [2009] NSWCA 110.

[23] [2022] NSWCA 209.

[24] [2024] NSWSC 777.

[25] [2024] NSWPICPD 61.

[26] [2021] NSWPICPD 37.

[28] [2025] NSWPICPD 62 (Leuzzi).

[29] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; Ali v AAI Ltd [2016] NSWCA 110; Rodger v De Gelder [2015] NSWCA 211; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244.

[30] Appellant's submissions to the Member, 31 July 2025, [11].

[31] Appellant's submissions to the Member, 31 July 2025, [12].

[32] Appellant's submissions to the Member, 31 July 2025, [14].

[33] Appellant's submissions to the Member, 31 July 2025, [15].

[34] Appellant's submissions to the Member, 31 July 2025, [16].

[39] Sarian v Elton [2011] NSWCA 123 per Whealy JA, [19].