Wiley v. McNeil (1986) 42 S.A.S.R. 537.

Mitsubishi Motors Australia Ltd. v. Stone (1994) 179 L.S.J.S. 211.

Harrington v. Harrington (1979) 22 S.A.S.R. 449.

Normandale v. Forrest (1972) 4 S.A.S.R. 6.

Kampes v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd (SA Employers Chamber of Commerce and Industry Incorporated) J.D.43/1997.

Butler v. GH Michell and Sons (Aust) Pty. Ltd. J.D.28/1997.

Little v. WorkCover Corporation/VACC Insurance Work Safe (SA) Pty. Ltd. (Allen Bigg Sales and Management Pty. Ltd.) J.D.20/1999.

Gauci v. WorkCover Corporation/ Royal and Sun Alliance Workers Compensation (SA) Pty. Ltd. (Gunsport Pty. Ltd.) J.D.33/1998.

Baskeyfield v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (Webb and Son Pty. Ltd.) J.D. 29/1998.

Smith v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (Underdale Metal Processing) J.D.10/1997.

House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499.

Ms. R. Layton Q.C. and Mr. R. Bonig (of counsel) for the Appellant.

This is an appeal by Mitsubishi Motors Australia Ltd. (`the employer') from the decision of a learned Deputy President refusing to issue directions that it sought, requiring Andrew Warren (`the worker') to submit to a medical examination that it had arranged for him to attend with Mr. Peter Fry, orthopaedic surgeon.

At the commencement of the hearing before us, Mr. Kernot, counsel for the worker, challenged the jurisdiction of this Full Bench to hear the appeal. After hearing submissions on this issue from the parties, we determined that we did have jurisdiction and we indicated that we would subsequently publish reasons in respect thereof. We now do so.

Section 86(1) of the Workers Rehabilitation and Compensation Act 1986 (`the Act') provides that: -

`An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.'.

Mr. Kernot submitted that this provision had to be read in conjunction with `Division 6 - Judicial Determination of Dispute'. He said that this suggested that the role of a presidential member is to judicially determine a dispute and that it is only when that process has been completed that the right of appeal conferred by section 86(1) comes into effect. In other words the right of appeal only lies against a decision that judicially determines the dispute between the parties, that is, a determination of their substantial rights and liabilities. He submitted that the decision made by the learned Deputy President in this case was of an interlocutory nature such that it did not fall within the ambit of section 86.

The words `a decision' have potentially a range of meanings. At one extreme, they could mean `a decision that finally disposes of the issues in dispute between the parties'. At the other, they could mean `any decision made by a Presidential Member'. (In both instances, it is subject of course to the qualification that an appeal lies only on a question of law.)

In determining how the words are to be interpreted, it is appropriate for us to give consideration to the scheme and purpose of the Act: Wiley v. McNeil (1986) 42 S.A.S.R. 537 at 549 per King C.J..

There are decisions that a Presidential Member can make that do not finally dispose of the issues in dispute between the parties that, if made as a result of an error of law, could result in a real injustice being suffered by the aggrieved party. Given that Parliament has not prefaced the word `decision' with the definite article `the', nor has it in any other way indicated that it has intended the right of appeal only to lie against a final judgment or order of the Tribunal, we think that the words `a decision' should be given a broad interpretation. This was the approach taken by the majority of the Full Supreme Court in Mitsubishi Motors Australia Ltd. v. Stone (1994) 179 L.S.J.S. 211, which dealt with the meaning of the words `a decision' in section 97 of the Act as it stood on 8 April 1991 following amendment of the Act by Act No 4 of 1991. In his judgment His Honour Justice Prior applied Harrington v. Harrington (1979) 22 S.A.S.R. 449 and Normandale v. Forrest (1972) 4 S.A.S.R. 6 and concluded that `a decision' refers to more than a final order disposing of the substantial dispute arising between the parties.

However, His Honour then went on to say that the expression did not embrace all orders in the course of arriving at a final decision. In the context with which he was concerned, he said that the words did not apply to `all interim and provisional orders, orders directed to matters of procedure incidental to a hearing, orders that are merely incidental or ancillary orders or mere rulings' (supra p. 219). That qualification is apposite here. We do not think that it was Parliament's intention for every decision made by a Presidential Member that concerns a question of law to give rise to the right of an appeal to the Full Bench. Parliament has clearly indicated the intention to create a process that achieves the expeditious resolution of disputes. Moreover, one of the stated objects of the Act is `to reduce litigation and adversarial contests to the greatest possible extent': section 2(1)(f). If every decision made by a Presidential Member which concerns a question of law gave rise to a right of an appeal, there would be the potential for a multiplicity of legal procedures within the one dispute. This would be inconsistent with the scheme and purpose of the Act. This leads us to conclude that Parliament only intended an appeal to lie against those decisions made by a Presidential Member which concern a question of law and which either conclusively deal with the issues in dispute between the parties or which, if made erroneously, will result in a real injustice to the aggrieved party if allowed to stand. Because it was our opinion that the decision under review in this case could potentially be so categorised, we ruled that the within appeal was competent.

Whether it is reasonable to require a worker to attend a medical examination arranged by a compensating authority is a question of fact. We would agree with the decision of a single member of the Tribunal in Kampes v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (SA Employers Chamber of Commerce and Industry Incorporated) J.D.43/1997, that it is for the party who is requesting the direction to establish to the satisfaction of the Tribunal that the examination is reasonably required and that the intervention of the Tribunal is reasonably sought. If on the face of it the examination is reasonably sought and the intervention is reasonably required it is for the worker to establish that in the particular circumstances the Tribunal should nonetheless refuse to intervene. The issue of reasonableness both as to the seeking of the examination and the intervention of the Tribunal may relate to the conduct of the litigation by the parties and in particular the compensating authority which is seeking the examination. See: Butler v. GH Michell and Sons (Aust) Pty. Ltd. J.D.28/1997; Little v. WorkCover Corporation/VACC Insurance Work Safe (SA) Pty. Ltd. (Allen Bigg Sales and Management Pty. Ltd.) J.D.20/1999; and Kampes (supra). In other cases reasonableness may turn on the facts in existence at the time of the request and in particular whether new facts have come to light following the compensating authority's determination which may materially influence the case which the compensating authority is required to meet. (See: Gauci v. WorkCover Corporation/ Royal and Sun Alliance Workers Compensation (SA) Pty. Ltd. (Gunsport Pty. Ltd.) J.D.33/1998; and Baskeyfield v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Webb and Son Pty. Ltd.) J.D.29/1998.)

As reasonableness is determined by a consideration of the facts and the learned Deputy President's decision represented an exercise of discretion, the question arises whether there is an appealable error to be heard by the Full Tribunal. Ms. Layton Q.C., counsel for the employer, urged upon us that there has been an error of law because the learned Deputy President misunderstood the proper legal effect of the proved facts. It was said that his determination of the issue of reasonableness was fundamentally flawed because he misunderstood the facts and thus did not apply the test of reasonableness correctly. If that were so, then in our view an error of law would result. (Smith .v WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (Underdale Metal Processing) J.D.10/1997.) The exercise of discretion in this instance was dependent on a consideration of the facts and if there was a fundamental misapprehension as to those facts then the discretion miscarried and may be corrected: House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499. However that cannot be determined without setting out the facts found by the learned Deputy President.

The worker lodged a claim for compensation on 16 March 1998, for income maintenance, alleging that he sustained a compensable disability to his lower back and left leg on or about 5 December 1997. The employer rejected that claim for a number of reasons. These included an assertion that the worker had not suffered a disability arising out of or in the course of his employment with the employer; and an assertion that as a result of events that occurred on 1 July 1998, he was dismissed for serious and wilful misconduct or otherwise committed a breach of mutuality such that the employer was relieved of any liability to pay him income maintenance.

On 27 May 1998, the worker lodged a further claim for income maintenance alleging that he sustained depression that he alleged manifested itself on 25 May 1998. The employer also rejected this claim. Its grounds for doing so included an assertion that the worker had not suffered a disability arising out of or in the course of his employment, and that the events of 1 July 1998 relieved it of any liability to pay weekly payments of income maintenance.

In the course of the investigations that the employer conducted before determining the worker's claims, it required the worker to submit to a medical examination with Mr. Fry.

Mr. Fry subsequently prepared a report dated 19 June 1998 in which amongst other things, he recorded that on examination `Both straight leg raising signs were to 70 degrees ...;' that the worker `is fit for light work not requiring repetitive bending or heavy lifting', and that `If the history is exactly as it was given to me, then his rupture has been caused by his employment with Mitsubishi'.

Independently of this, Mr. Gordon Ormandy, general surgeon, saw the worker. He prepared a medical report dated 11 June 1998 in which, amongst other things, he recorded that he found straight leg raising tests on each leg to be 45 degrees; that `He should not return, at this stage, to aggravating work requiring repeated bending of his lumbar spine or lifting of heavy weights'; and that `There is no doubt that this prolapse of the disc was caused by the type of work that he was doing in his employment at Mitsubishi.'

On 28 January 1999, Mr. Ormandy reviewed the worker. He supplied a supplementary report of the same date, which included the following: -

`... It seems inevitable that he will need to have some appropriate surgery and spinal fusion may be the option chosen. He will have to await the advice from the specialist who is seeing him.

Under the circumstances his condition is not stable. I am able to say that in his present clinical state that he will not be able to work in his former occupation, labouring on the production line at Mitsubishi. He probably would have difficulty doing any meaningful work, even in modified duties for the company.

He will need to be reviewed later to assess the results of any surgery undertaken, perhaps six months after such surgery.'

The report also records finding on examination of straight leg raising tests of 15 degrees for the left leg and 25 degrees for the right leg.

Upon receipt of the later report of Mr. Ormandy, the employer resolved to arrange for a further medical examination with Mr. Fry. The worker indicated that he would not attend such examination. That in turn led to an application for directions being lodged by the employer to seek the intervention of the Tribunal to direct the worker to submit to the examination. We now turn to consider the learned Deputy President's approach to the application.

The learned Deputy President proceeded upon the basis that he was legally empowered to grant the relief sought. With respect he was clearly correct in coming to that conclusion. He nevertheless refused the application. In doing so he said: -

`In this instance it is difficult to see how any of the information cited by Mr. Fountain as emanating from Mr. Ormandy's January report either changes the case that the respondent has to meet or is of such significance to the issues in dispute between the parties as to require re-examination by Mr. Fry. Mr. Fry's re-examination might or might not result in him agreeing with Mr. Ormandy's more pessimistic assessment of the worker's condition but his updated assessment of the worker's condition as at April 1999 could have little bearing on the issues in dispute between the parties. Whether the worker is currently totally as opposed to partially incapacitated for work is in the circumstances of this case [sic] not of any moment to the disputed issues.'

The learned Deputy President then dealt with a submission based on the assertion that the worker's credibility was in issue and he said: -

`However Mr. Fry has already had an opportunity to assess the worker's history, presentation and credibility, and this is at a time more relevant to the issues in dispute, and there is nothing in the new information said to emerge from Dr. Ormandy's January report that appears to be at odds with the information provided to Mr. Fry in June 1998.'

It follows that in refusing the application, the learned Deputy President formed the view that little if anything would be achieved by Mr. Fry's re-examination of the worker, in the context of the issues in dispute between the parties.

With respect, it is our view that the learned Deputy President erred in law in his approach to the application. In the first place, he misapprehended the scope of the issues in dispute between the parties. Even though the worker had initially asserted a partial incapacity for work, the effect of the further report of Mr. Ormandy laid the way open for an assertion of a total incapacity for work at least from the time of that examination and, on the disputed determination, that is a matter relevant to the matters in issue. There is an assertion (clause 3.5(ii)) that the worker permanently breached the obligation of mutuality on 1 July 1998 and has no entitlement to weekly payments thereafter. If he establishes a total incapacity for work as a result of the lumbar strain at some time thereafter this might influence the significance of the alleged breach of mutuality.

Secondly, he approached the issue of reasonableness solely by reference to what he understood the issues to be. In our view that is too narrow an approach. It may be reasonable to require a submission to a medical examination even though the examination might not be focussed towards specific issues in dispute between the parties. In this case, Mr. Ormandy's opinion of deterioration is without obvious explanation. The employer is entitled to obtain an opinion on that issue based on a medical examination relatively contemporaneous with that of Mr. Ormandy. Mr. Fry's re-examination might reveal different findings on examination to those found by Mr. Ormandy. If that occurred, it might provide the employer with evidence to challenge the worker's credibility. We think that as a matter of fairness, it is legitimate for the employer to require a review to be conducted by Mr. Fry, if for no other reason, than to explore the possibility of obtaining evidence that might undermine the worker's credibility.

Although most of the applications that have been made to the Tribunal seeking its intervention to facilitate a worker's submission to a medical examination which the compensating authority wishes to occur, have failed, it should not be inferred that it is only in an exceptional case that a request made by a compensating authority to have a worker submit to a medical examination will be regarded as reasonable. The circumstances of the cases in which applications have been refused have generally been exceptional. In Butler v, G.H. Michell and Sons (Aust.) Pty. Ltd. (supra) and Kampes (supra) for example, the cases had already been the subject of a listing conference at which the parties had declared their readiness for trial. In the absence of compelling evidence indicating that the proposed medical examination was essential to enable a fair hearing, the Tribunal, with respect, quite correctly declined to intervene. In Drysdale v. Mitsubishi Motors J.D.18/1998 and in Little v. WorkCover/VACC Insurance Work Safe (SA) Pty. Ltd. (Allen Bigg Sales and Management Pty. Ltd.) (supra), the Tribunal declined to make an order in circumstances where the compensating authorities sought an order shortly after determining to reject the worker's claim without feeling the need to use the powers conferred upon them by section 53(2). Again the circumstances of these cases were unusual.

Where the Tribunal is requested to intervene, in deciding whether to do so, it will consider all of the relevant circumstances. Hence it is not possible to lay down prescriptive guidelines detailing all of the circumstances when such applications will succeed. But that said, it ought to generally be sympathetic to an application which is based upon the production of a medical report from a worker which gives a changed history to the doctor, or which reveals findings on examination that are at variance to those expressed in earlier opinions of the worker's doctors, or where there is an asserted change in the medical condition either without any or any sufficient explanation. Any one of these may constitute a material change, which is sufficient to justify a requirement for the worker to attend a medical appointment. The compensating authority ought not to be placed in a situation where it is prevented from obtaining contemporaneous evidence to respond to a changed set of facts.

Because it is our view that the employer has a legitimate interest in seeking to test the findings made by the worker's medical expert we think that it is reasonable for it to require the worker to submit to a further review with its own medical expert, Mr. Fry. In coming to the contrary conclusion, with respect, the learned Deputy President made errors of law. If we were to allow his decision to stand, the employer might suffer a real injustice. We therefore feel obliged to intervene.

Accordingly, we allow the appeal. We set aside the decision of the learned Deputy President refusing the employer's application. We adjourn further consideration of this appeal with an intimation that if the worker fails to submit to a medical examination that the employer makes with Mr. Fry, we would be favourably disposed to make an order adjourning the judicial determination of his dispute with the employer until he submits to that examination.