Allen and Telstra Corporation Ltd

[2003] AATA 1026

Administrative

Appeals

Tribunal

 

DIRECTION AND REASONS FOR DIRECTION [2003] AATA 1026

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/870

GENERAL ADMINISTRATIVE  DIVISION		)               Q2003/306, 308
Re		JENNIFER ALLEN

Applicant

And TELSTRA CORPORATION LTD

Respondent

DIRECTION

Tribunal Mr O Rinaudo, Member

Date10 October 2003

PlaceBrisbane

Direction The Tribunal is satisfied that the applicant had a reasonable excuse (pursuant to subsection 57(2) of the Safety, Rehabilitation and Compensation Act 1988) for failing to attend the appointment with Dr Douglas, Rheumatologist.  The Tribunal directs that the matter is to proceed to a hearing on 11 and 12 December 2003 as scheduled. 

...................(Sgd)..........................

O Rinaudo
  Member

CATCHWORDS

WORKERS’ COMPENSATION – medical appointment – section 57 – whether applicant has a reasonable excuse for failing to attend the scheduled medical appointment.

Safety, Rehabilitation and Compensation Act 1988 s 57(2)

REASONS FOR DIRECTION

10 October 2003 Mr O Rinaudo, Member    

1.      A telephone directions hearing was held today to determine whether the applicant was required to be examined by Dr William Douglas, Rheumatologist on behalf of the respondent.  An appointment was made for the applicant to see Dr Douglas on 10 September 2003.  However, the applicant did not attend at that appointment.

2.      The application for review is listed for hearing on 11 and 12 November 2003.

3. Correspondence has passed between the solicitors for the applicant and the solicitors for the respondent, the solicitor for the applicant having last written to the solicitors for the respondent on 5 September 2003 when the applicant’s solicitors argued that there was reasonable excuse for the applicant not to attend the scheduled appointment with Dr Douglas in accordance with the requirements under section 57 of the Safety, Rehabilitation and Compensation Act 1988..  The reasonable excuse was twofold:

“(i)Our client has been under your client’s evaluation for the purpose of her compensable claim for nearly three years.  During that entire period of time, at no point has it been suggested by any of the medical practitioners that our client is suffering from any underlying rheumatological condition.  Had such a rheumatological condition been suspected, we feel confident that at least one of the medical practitioners might have suggested it.  Your contention that to the contents of Dr Robinson’s report give rise to a conclusion or at least a suspicion that there might be a rheumatological condition is plainly wrong.  Drs Ho, Blue, Robinson, Martin and Wignall do not believe that our client is suffering from any rheumatological condition that would give rise to the necessity for an examination by a rheumatologist.

(ii)Our client’s applications have been proceedings in the Tribunal for about eleven months.  At no point in time has it been suggested throughout that entire process that a rheumatological examination would be required.  The reason for this is obvious:  it is not necessary.  On 4 August 2003, directions were made in this matter by Deputy President Muller to enable the matter to be listed for Hearing.  The matter has now been listed for 11 and 12 November 2003.”

4.      Dr Bruce Martin saw the applicant and reported on 20 January 2003.  He had a substantial number of reports available to him when he examined the applicant.  He makes firm conclusions. 

5.      Dr Mark Robinson saw the applicant and reported on 24 March 2002.  He also gave a short report (one paragraph) dated 25 May 2003.  There are also reports from Dr Ho, Orthopaedic Surgeon and Dr Blue, Orthopaedic Surgeon.  The most recent report, however, is Dr Martin’s report dated 20 January 2003.

6.      None of the reports refer or suggest that the applicant should be examined by a rheumatologist.  Whilst it may be arguable that a rheumatologist may be able to shed some light on the matter, there is no suggestion that such a report would be conclusive.  In any event, the applicant has indicated that if the respondent were to obtain the rheumatological examination they may require one as well.  This may simply mean that in 6 to 12 months time there are another 2 conflicting medical reports.

7.      It would appear from the file that the medical evidence has been settled since January this year.  The orthopaedic surgeons are forceful in their opinions. 

8.      The Tribunal does not consider that any worthwhile purpose might be served by delaying the hearing of this matter for the applicant to be examined by a rheumatologist.

9.      It should be noted that the respondent’s hearing certificate, which confirmed that the case was ready to proceed to a hearing, was dated 11 August 2003.

10.     It is, of course, always difficult balancing the competing interests of the applicant for a speedy resolution of her application and the respondent’s entitlement to defend the application appropriately.

11.     However, in this case I am satisfied that the matter can proceed adequately on the available evidence and, accordingly, find that the applicant had a reasonable excuse for failing to attend the appointment with Dr Douglas.  The matter is, therefore, to proceed to a hearing on 11 and 12 November 2003 as scheduled.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the direction herein of Mr O Rinaudo

Signed:         Sarah Oliver
  Associate

Date/s of Hearing  10 October 2003
Date of Direction  10 October 2003

Solicitor for the Applicant          Mr R Hodgson - Maurice Blackburn Cashman
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Mr S Routh