Background
Yadav Aryal, a registered nurse employed at Waratah Private Hospital since October 2021, alleged he suffered a psychological injury arising from workplace bullying and harassment that began in October 2022 when his rostered days were changed. He claimed a Nurse Unit Manager acted aggressively during a November 2022 meeting about the roster change and that harassment continued thereafter. His workers compensation insurer, EML, denied liability in December 2023 on the basis that any psychological injury was wholly or predominantly caused by reasonable employer action — including performance management and provision of employment — which is a complete defence under s 11A(1) of the Workers Compensation Act 1987 (NSW). He also pursued a lump sum claim based on a 22% whole person impairment (WPI) assessment by Dr Hong, who diagnosed major depressive disorder and attributed it predominantly to the manager’s behaviour.
EML required Aryal to attend an independent medical examination (IME) to assess his WPI claim under s 282(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Aryal repeatedly refused to attend any IME. Both of his law firms independently advised him that attendance was mandatory, but he terminated each retainer in succession rather than comply. He filed an application in the Personal Injury Commission (PIC) in March 2025. A conciliation/arbitration hearing in May 2025 resulted in a direction from Member Turner requiring him to attend an IME with Dr Morgans. Aryal defied that direction, failed to appear at the July 2025 hearing, and Member Turner dismissed his PIC proceedings on 28 July 2025. Aryal’s subsequent application for reconsideration under s 57 of the Personal Injury Commission Act 2020 (NSW) was dismissed on 16 December 2025 on the basis that he was seeking a summary determination in his favour without giving the other side a hearing, which would be procedurally unfair.
Aryal then brought proceedings in the Supreme Court, self-represented, seeking judicial review by way of certiorari of the 30 May 2025 directions, the 28 July 2025 determination, and the 16 December 2025 reconsideration determination. He advanced 16 grounds of review, with many overlapping. His central thesis was that the insurer had misidentified the date his WPI claim was served — asserting it was 24 July 2024 rather than 28 August 2024 — and that this was a “jurisdictional fact” the Member had wrongly determined, vitiating all subsequent decisions.
The Court’s Holding
Sirtes J dismissed the Further Amended Summons in its entirety. A threshold obstacle defeated most of the application: under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), judicial review proceedings must be commenced within three months of the decision under review. Aryal’s summons was filed on 9 March 2026, well outside the three-month window for both the 30 May 2025 directions and the 28 July 2025 determination. No leave to extend that period was sought. The dismissal of the reconsideration application by Member Turner did not restart the limitation clock; because the reconsideration was rejected rather than resulting in an altered decision under s 57(4) of the PIC Act, the material date remained 28 July 2025. Only the 16 December 2025 reconsideration determination was amenable to judicial review on timeliness grounds.
On the merits of the service-date dispute — which underpinned the majority of Aryal’s grounds — the court held his argument was misconceived. Section 282(2) of the 1998 Act gives the insurer an unqualified right to require a claimant to attend an IME as a condition of furnishing “all relevant particulars,” and no option exists for a claimant to refuse. The court adopted and applied the reasoning of Parker ADP in Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCCPD 61: until a claimant attends a required IME, the relevant particulars are not provided and the insurer’s two-month determination period under s 281(2)(b) does not begin to run. The court further held that the two-week window in s 282(3) (within which an insurer must request further particulars) does not constrain or time-limit the employer’s separate right under s 282(2) to require an IME. In any event, the service date was not a “jurisdictional fact” for the purposes of s 54 of the PIC Act — it was not a precondition to the PIC’s jurisdiction to determine the claims — so any error in identifying it could not constitute jurisdictional error sufficient to ground certiorari.
As to the 16 December 2025 reconsideration determination, the only decision in time, Aryal failed to demonstrate that Member Turner erred in his application of s 57 of the PIC Act. The Member’s conclusion that the reconsideration application was effectively a request for summary judgment in Aryal’s favour without affording the opposing party any hearing was open to him. No ground of review was established.
Key Takeaways
- A claimant pursuing a lump sum WPI compensation claim cannot refuse an independent medical examination required by the insurer under s 282(2) of the 1998 Act — the right to demand such an examination rests solely with the insurer, and refusal means the claimant has not provided “all relevant particulars,” so the insurer’s determination deadline never begins to run.
- The two-week window under s 282(3) for an insurer to request additional particulars does not limit or control the insurer’s separate right under s 282(2) to require a claimant to attend an IME; those provisions operate independently.
- A dismissed application for reconsideration under s 57 of the PIC Act does not produce a new “decision” that resets the three-month limitation period for judicial review under UCPR r 59.10 — only an altered decision under s 57(4) has that effect.
- For an incorrect factual finding to amount to jurisdictional error, the fact in question must be a precondition to the tribunal’s jurisdiction; an error regarding the date a claim was served does not satisfy this test where the PIC has jurisdiction to hear the dispute regardless of that date.
- A PIC member acts within jurisdiction in dismissing proceedings where a self-represented claimant fails to attend a scheduled hearing and has persistently defied directions to undergo an IME.
Why It Matters
This decision reinforces the primacy of the insurer’s right to an independent medical examination in lump sum compensation claims under the NSW workers compensation scheme. Claimants and their advisers should understand that s 282(2) operates as a threshold requirement: without IME attendance when demanded, the statutory clock for insurer determination never starts, and the PIC cannot resolve the WPI dispute on the papers alone. The case also cautions against attempts to use reconsideration applications or piecemeal judicial review as a substitute for timely appeals, as the three-month limitation period for certiorari will often be fatal to late-filed challenges.
For self-represented litigants, the judgment illustrates the severe procedural consequences of defying tribunal directions and failing to appear at scheduled hearings, even where genuine health concerns are raised. It also clarifies that advancing a large number of overlapping grounds alleging “jurisdictional error” will not succeed unless at least one ground identifies a true precondition to jurisdiction that was misapplied — re-characterising factual or merits disputes as jurisdictional error does not convert them into grounds for certiorari.