Applicant 202053 v Employers Mutual Limited
[2022] ACAT 9
•7 February 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT 202053 v EMPLOYERS MUTUAL LIMITED (Discrimination) [2022] ACAT 9
DT 53/2020
Catchwords: DISCRIMINATION – where the respondent was appointed by the Territory to manage workers’ compensation claims on its behalf – where the respondent refused to pay compensation for operational support and psychological treatment by a mental health social worker on the grounds that it was not ‘medical treatment’ – where the respondent required the applicant to attend independent medical assessments by medical practitioners of its choice, causing the applicant to suffer distress – where the medical practitioners had unfavourable reviews on a website – where the respondent suspended the applicant’s compensation payments on the grounds of her refusal to attend an independent medical assessment – whether the respondent provides ‘services’ to employees who have suffered a workplace injury – whether the respondent treated the applicant unfavourably – whether the treatment was ‘because of’ of her disability – test for causation considered – breach of section 20 of the Discrimination Act not established – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Disability Discrimination Act 1992 (Cth) s 10
Discrimination Act 1991 ss 4AA, 4A, 5AA, 7, 8, 20, 30, 70, 121A
Human Rights Commission Act 2005 ss 53A, 53CA, 53E
Public Sector Workers Compensation Fund Act 2018
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 6, 14, 16, 19, 41, 53, 54, 57, 60, 62, 64
Subordinate
legislation cited: Safety, Rehabilitation and Compensation (Specification of Medical Examination Interval) Instrument 2019 (Cth)
Cases cited:Abraham v Thomas [2020] ACAT 41
Andreopoulos v University of Canberra [2020] ACAT 95
Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14
Australian Capital Territory v Wang [2019] ACAT 65
Bickle v State of Victoria [2020] FCA 168
Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Complainant 201908 v Commissioner for Fair Trading [2020] ACAT 24
Complainant 201931 v Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 9
Cooley v Australian National University [2007] ACTDT 2
Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Ezekiel-Hart v Reis [2017] ACAT 3
IW v City of Perth [1997] HCA 30
Keightly v ACT Ambulance Service [2019] ACAT 61
Kidman v Casino Canberra Ltd [2020] ACAT 50
Kovac v The Australian Croatian Club Ltd [2014] ACAT 41
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Phillips v Australian Capital Territory [2021] ACAT 22
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis v State of New South Wales [2003] HCA 62
Rainsford v Victoria [2005] FCAFC 163
Robinson v Commissioner of Police [2012] FCA 770
Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179
State of New South Wales v Whiteoak [2014] NSWCATAP 99
Williams v The Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65
Wright v Commissioner of Police [2014] NSWCATAP 67
Texts cited:R. P. Balkin and J. L. R. Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013)
Tribunal: Senior Member M. Orlov
Date of Orders: 7 February 2022
Date of Reasons for Decision: 7 February 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 53/2020
BETWEEN:
APPLICANT 202053
Applicant
AND:
EMPLOYERS MUTUAL LIMITED
Respondent
TRIBUNAL: Senior Member M Orlov
DATE:7 February 2022
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member M Orlov
Contents
ORDER
REASONS FOR DECISION
Introduction
Relevant requirements of the Discrimination Act
Disability
Unfavourable treatment
Causation
Services
Rebuttable presumptions
The evidence
Statutory entitlement to worker’s compensation
The services EML was contracted to provide under the Administrator Agreement
Factual background
Summary of the applicant’s case
Discrimination Claim One
Discrimination Claim Two
Summary of EML’s response to the claims
The first answer
The second answer
The third answer
The issues for determination
Consideration
Discrimination Claim One
Discrimination Claim Two
Conclusion
REASONS FOR DECISION
Introduction
1.This application concerns a discrimination complaint referred to the Tribunal by the Human Rights Commission (HRC) at the applicant’s request under section 53A of the Human Rights Commission Act 2005 (HRC Act).
2.At relevant times, the applicant was a part-time Allied Health Assistant 3 working in the ACT mental health system. She has a psychiatric illness, diagnosed as schizophrenia. Although the applicant’s schizophrenia previously had been reasonably well managed, she suffered significant anxiety and stress in her workplace in the period from early November 2018 until she resigned from her employment in June 2019. The applicant and her treating psychiatrist and general practitioner attributed the cause to the applicant being exposed to a workplace environment where she was given tasks and allocated responsibilities that were beyond her capabilities, without adequate oversight, supervision, or support. The applicant claimed that she suffered a workplace injury involving a significant exacerbation of her schizophrenia. On 3 July 2019, the applicant made a claim for workers’ compensation under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
3.The respondent (EML) is the workers’ compensation claims management agent of the Territory, which is a licensed self-insurer under the SRC Act. EML was appointed by the Territory under the ACT Workers’ Compensation Third Party Administrator Agreement on 10 October 2018 (Administrator Agreement) to provide, among other things, claims management services on behalf of the Territory. The operation of the Comcare scheme established under the SRC Act and the Public Sector Workers Compensation Fund Act 2018, which provides the statutory foundation for the Territory to be a self-insured licensed corporation under the SRC Act, is explained in Phillips v Australian Capital Territory[1] and need not be revisited here.
[1] [2021] ACAT 22 at [26]-[33] per SM Hyman
4.On 30 August 2019, EML denied liability for the claim on the grounds that the applicant’s employment did not contribute to her condition to a significant degree. EML’s position was that the applicant’s condition was a relapse of her schizophrenia caused by her ceasing to take prescribed anti-psychotic medication. On 22 October 2019, following a request for reconsideration of the decision, EML accepted liability to pay compensation for a workplace injury described as ‘aggravation of schizophrenia’ deemed to have been sustained on 8 November 2018.
5.On 28 January 2020, the applicant made a complaint (the Complaint) to the HRC against EML of unlawful discrimination in the provision of services on the grounds of her disability in breach of section 20 of the Discrimination Act 1991 (Discrimination Act or the Act).
6.In broad terms, the Complaint related to EML’s assessment and documentation requirements, and decision-making processes relating to the applicant’s claim, including EML’s initial refusal of the claim and, after the favourable reconsideration decision, the refusal of EML’s case managers to approve payment for operational support and the applicant’s mental health social worker. In essence, the applicant claimed that EML’s case managers treated her unfavourably in making discretionary decisions about her workers compensation claim, in her words, “because I was dismissed as being ‘a schizophrenic’ who just needed her medication”.[2]
[2] Applicant’s document titled ‘ACAT DT 53/2020 [applicant’s name] vs EML’ dated 6 January 2021, filed in the ACAT on 5 August 2021 (Applicant’s Submissions), page 2
7.Of the original issues raised in the Complaint, at the hearing the applicant pressed only two claims.
8.The first claim, which the applicant described as Discrimination Claim One, alleged that EML discriminated against her by refusing to approve payment for operational support recommended by her GP and for the applicant’s mental health social worker, the effect of which was to deny her the support she needed to assist in her recovery.
9.The second claim, which the applicant described as Discrimination Claim Two, alleged that EML discriminated against her by requiring, after her claim was accepted, that she attend independent medical examinations (IME) by a neuropsychologist and psychiatrist of EML’s choosing, rather than her own, causing her significant anxiety and distress, which was compounded by EML’s decision to cease making payments for reasonable medical expenses and incapacity payments until the applicant agreed to attend the IME.
Relevant requirements of the Discrimination Act
Disability
10.‘Disability’ is a protected attribute under section 7(1)(e) of the Discrimination Act. By section 5AA(1)(g), the meaning of ‘disability’ includes “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour”. By section 5AA(2), ‘disability’ includes, among other things, behaviour that is a symptom or manifestation of the disability and reliance on a support person. The applicant submitted that her schizophrenia and its associated symptoms and mental health issues are a ‘disability’ for the purposes of the Act. I accept this as correct.
Unfavourable treatment
11.By section 8 of the Discrimination Act, a person may be directly or indirectly discriminated against, or both. Direct discrimination occurs when a person treats another person unfavourably ‘because of’ a protected attribute. Indirect discrimination occurs when a person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person ‘because of’ a protected attribute. However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
12.Whether treatment is unfavourable is a question of fact. The test is objective rather than comparative. ‘Unfavourable treatment’ has been said to encompass acts or omissions which result in some detriment, being loss, damage, or injury.[3]
[3] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi, Patricia Anne v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgelyv Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57])
13.In Kidman v Casino Canberra Pty Ltd,[4] the tribunal said:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[5]
[4] Kidman v Casino Canberra Ltd [2020] ACAT 50 at [22]
[5] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]-[7]. See also, Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
14.Whether a condition or requirement imposed has the effect of disadvantaging a person is a question of fact. In Australian Capital Territory v Wang, the appeal tribunal noted that the words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination Act.[6] The appeal tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne v Discrimination Commissioner[7] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd:
[22] … While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison… or means specially favourable to success, interest or any desired end …
[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint…[8]
[6] Australian Capital Territory v Wang [2019] ACAT 65 at [185]
[7] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22] and [24]
[8] [2001] FCA 379
15.In Williams v The Trustees of Swansea University Pension & Assurance Scheme[9] the Supreme Court of the United Kingdom considered the meaning of the expression “treats…unfavourably” in section 15(1) of the Equality Act 2010 (UK), which provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Lord Carnwath (with whom the other Law Lords agreed) observed that no element of comparison was involved. Rather, “section 15 appears to raise two simple questions of fact: what was the relevant treatment and was it unfavourable to the claimant?”[10] He concluded:
…that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective’ approach…Nor do I find it useful to speculate about the application of the section…in hypothetical cases which are not before the court. [11]
Causation
[9] [2018] UKSC 65
[10] [2018] UKSC 65 at [12]
[11] [2018] UKSC 65 at [27]
16.Section 4A(2) of the Discrimination Act provides that doing an act ‘because of’ a particular matter includes a reference to doing an act because of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
17.In other words, the applicant must satisfy the Tribunal that her protected attribute was a reason, even if not the dominant or substantial reason, for EML doing, or failing to do, something prohibited by section 20 of the Discrimination Act. Causation is a question of fact.
18.In Purvis v State of New South Wales (Purvis)[12], a case involving the decision of a school principal to suspend and later expel a pupil who repeatedly assaulted teachers and other pupils, the issue was whether the pupil received less favourable treatment ‘because of’ his disability which made him prone to acts of violence. Section 10 of the Disability Discrimination Act 1992 (Cth) provided that if an act is done for two or more reasons and one of the reasons is the disability of a person, whether or not it is the dominant or a substantial reason for doing the act, then for the purposes of the Act, the act is taken to be done for that reason. In dismissing the appeal, the majority comprising Gummow, Hayne and Heydon JJ said:
It is, however, desirable to say something shortly about the third issue argued in the appeal: was there less favourable treatment “because of” disability? The argument about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter’s use of the expression “by reason of” in the equivalent provisions of the Sex Discrimination Act rather than the expression “because of” used in s 5(1) and other provisions of the Act. Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person “whether or not it is the dominant or a substantial reason for doing the act” then for the purposes of the Act “the act is taken to be done for that reason”.
Counsel referred to statements in this Court construing other anti-discrimination statutes where the view was taken that the phrase “on the ground of” did not require an examination of intention or motive. On the other hand, in James v Eastleigh Borough Council, the House of Lords treated as decisive the aim of the Council in acting as it did.
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.[13]
[12] [2003] HCA 62
[13] [2003] HCA 62 at [234] - [236]
19.Gleeson CJ, who agreed with the orders of the majority, considered that the relevant parts of the legislation, including section 10 of the Act, “are concerned with the lawfulness of the conduct of the school authority, and the true basis of the decision of the decision of the principal to suspend and later expel the pupil” and that the “expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people”.[14]
[14] [2003] HCA 62 at [13] (Gleeson CJ)
20.McHugh and Kirby JJ, who dissented in the result, referred to the test for discrimination stated by Kirby J earlier in IW v City of Perth (IW)[15] which they said “correctly…focuses on the “real reason” for the alleged discriminator’s acts” and which they said had been wrongly characterised as an application of a ‘but for’ test.[16] In IW Kirby J had said:
The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons – and because affirmative proof of an unlawful reason is often difficult – the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was ‘by reason’ or ‘on the ground’ of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator’s reason or grounds. It must be a real ‘reason’ or ‘ground’. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.[17]
[15] [1997] HCA 30
[16] [2003] HCA 62 at [166] (McHugh and Kirby JJ)
[17] cited in [2003] HCA 62 at [142] (McHugh and Kirby JJ)
21.In IW, the legislation under consideration was the Equal Opportunity Act 1984 (WA), which did not include an equivalent provision to section 10 of the Disability Discrimination Act 1992 (Cth) or section 4A of the ACT Discrimination Act.
22.In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) (Nicholls)[18] the Appeal Panel of the NSW Administrative Decisions Tribunal concluded that the test for causation following Purvis was encapsulated by the following question:
The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motives and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.[19]
[18] [2009] NSWADTAP 20
[19] [2009] NSWADTAP 20 at [28]
23.The Appeal Panel said in relation to section 4A of the Anti-Discrimination Act 1977 (NSW) (which, although expressed in different terms, is similar in effect to section 4A(2) of the Discrimination Act) that:
…s 4A is an explanatory provision which does not give the words ‘on the ground of’ an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The enquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.[20]
[20] [2009] NSWADTAP 20 at [36]
24.The question whether the test as stated originally in Nicholls correctly reflected the decision in Purvis was considered by the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT), the statutory successor to the NSW Administrative Decisions Tribunal, in Wright v Commissioner of Police (Wright).[21] The Appeal Tribunal accepted a joint submission by counsel for the parties that the decision in Purvis does not stand for the proposition that the causation element in a complaint of direct discrimination requires that the reason for the alleged discriminatory conduct must be at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the conduct. None of the judges in Purvis referred to the need for ‘genuine’ reasons and McHugh and Kirby JJ, who referred to the need for ‘real’ or ‘true’ reasons, were in the minority. The Appeal Panel accepted that the correct test was that stated by the majority (Gummow, Hayne and Heydon JJ) at [234] of the decision – namely, why was the aggrieved person treated as he or she was. It was not necessary that the unlawful reason be the only or dominant reason for the impugned conduct. It need only be one of the reasons.[22] The Appeal Panel found however, that although the original tribunal erred in its statement of the law, the subsequent findings of fact satisfied the test stated at [234] of Purvis.
[21] [2014] NSWCATAP 67
[22] [2014] NSWCATAP 67 at [128] – [131]
25.Wright has largely been overlooked in subsequent NCAT decisions, which continue to state the test as originally set out in Nicholls, typically citing Purvis (rather than Nicholls) as the source. For example, in Secretary, Department of Communities and Justice v Tebb (Tebb)[23], the Appeal Panel stated:
The test is whether disability (as defined in the Act) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. As the Tribunal stated at [39], the real issue was whether one of the reasons the respondent’s managers subjected Mr Tebb to the treatment about which he complains was because he had, or was thought to have, gout.[24]
[23] [2020] NSWCATAP 179
[24] [2020] NSWCATAP 179 at [66]
26.In Kovac v The Australian Croatian Club Limited (Kovac)[25] (which was decided by the ACAT several months earlier than Wright) the issue was whether the board’s decision to reject the applicant’s application for membership of the club constituted unfavourable treatment ‘because of’ his political convictions or beliefs. In relation to causation, Presidential Member Spender said:
The Tribunal agrees with the applicant’s submission that the question for the Tribunal is whether the applicant’s political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls test that was relied upon by the parties in submissions. The Tribunal notes that Purvis provides an overarching question of whether the aggrieved person was treated less favourably ‘because of’ the person’s attribute. So in determining whether the respondent has treated the applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant’s political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.[26]
[25] [2014] ACAT 41
[26] [2014] ACAT 41 at [90]
27.Since then, the test as stated in Kovac – namely, whether the complainant’s protected attribute is a “real, genuine, or not insubstantial reason” for the alleged discriminatory conduct – has been adopted in the ACAT as the test for causation.[27]
[27] see e.g. Ezekiel-Hart v Reis [2017] ACAT 3 at [26] (SM Beacroft); Keightly v ACT Ambulance Service [2019] ACAT 61 at [76] (SM Brennan); Complainant 201908 v Commissioner for Fair Trading [2020] ACAT 24 at 91 (SM Robinson); Abraham v Thomas [2020] ACAT 41 at [107] SM Mulligan); Kidman v Casino Canberra Ltd [2020] ACAT 50 at [49]-[50] (SM Lennard); Complainant 201931 v Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 9 at [114] (SM Hyman); Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14 at [114] (PM Robinson); Phillips v Australian Capital Territory (As represented by Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22 at [94] (SM Hyman)
28.I must confess to finding neither the Nicholls test, nor the Kovac test, to be of much practical use in determining causation. A complainant must establish, on the balance of probabilities, that he or she was treated unfavourably ‘because of’ a protected attribute. As the majority stated in Purvis, the central question must always be – why was the aggrieved person treated in the way that he or she was? If the answer is that the person was treated unfavourably ‘because of’ a protected attribute, the unfavourable treatment is direct discrimination even if there were other reasons for the treatment. As Kirby J said in IW, the issue is whether the unlawful consideration – i.e. the person’s protected attribute – played a causative part in the alleged discriminatory conduct. The question is one of fact.
29.The task for the tribunal is to find whether a causal connection exists between the alleged unfavourable treatment and the aggrieved person’s protected attribute. I struggle to see how framing the question for the tribunal in terms of whether the protected attribute is a ‘real’, ‘genuine’, ‘true’, or ‘not insubstantial’ reason for the unfavourable treatment advances that enquiry. Nor do I see how a question framed in those terms can be answered without first asking what the majority in Purvis described as the “central question” – why was the person treated as they were? When the ‘central question’ is answered by identifying the reasons ‘because of’ which an act was done, what work remains for a further question whether, if one of the reasons was the person’s protected attribute, it was a ‘real’, ‘genuine’, ‘true’ or ‘not insubstantial’ reason? A ‘matter’ (adopting the terminology used in section 4A(2) of the Discrimination Act) is appropriately described as not a ‘real’, ‘genuine’, ‘true’, or ‘not insubstantial’ reason, where an analysis of the relevant circumstances establishes, on the balance of probabilities, that the ‘matter’ played no causative part in the unfavourable treatment by the alleged discriminator – i.e. the unfavourable treatment was not ‘by reason’ or ‘because of’ the matter in question. In that context, it seems to me that expressions such as ‘real reason’, ‘genuine reason’, ‘true reason’ or ‘not insubstantial reason’ may serve as general descriptors of the outcome of an analysis of causation, but they are neither synonymous with, nor suitable substitutes for, the statutory expression ‘because of’. Elevating them to the status of a ‘test’ for causation runs the risk of treating them as an impermissible gloss on the statutory language.
30.As the majority in Purvis emphasised, other words should not be substituted for the statutory expression ‘because of’. Many factors, including motive, purpose and effect may all bear on the question of causation. Where there is more than one reason for doing an act that would amount to unlawful discrimination if one of the reasons for doing the act is a person’s protected attribute, section 4A(2) makes it irrelevant to enquire whether the protected attribute is the ‘dominant’ or ‘substantial’ reason for doing the act. If that is not a relevant enquiry, I question how it can be relevant to enquire whether the protected attribute is a ‘real’, ‘genuine’, ‘true’ or ‘not insubstantial’ reason – a semantic excursion into territory where none of those expressions have a certain meaning, nor should be substituted for the statutory expression ‘because of’. The ‘central question’ – ‘why was the person treated in a particular way’ – can be answered only by reference to the statutory expression – i.e. the treatment was ‘because of’ the following matters. All that the Discrimination Act requires is that the protected attribute is a reason for the treatment, in the sense that the alleged discriminatory act is done ‘because of’ the protected attribute, even if it is also done ‘because of’ other matters.
31.As R. P. Balkin and J. L. R. Davis observed in their analysis of causal concepts in the legal text, Law of Torts:
There is now an established line of authority in both Australia and the United Kingdom that causation is essentially a question of fact, not susceptible of reduction to any one philosophical or scientific formula such as the ‘but for’ test, but rather to be resolved as a matter of common sense and experience. The reason for this distinction was stated by Mason CJ in March v E and MH Stramare Pty Ltd:
In philosophy and science, the concept of causation has been developed in the context of exploring phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.
As acknowledged by the High Court in Chappel v Hart, the conclusion, as a result, is often reached intuitively and without a lengthy articulation of reasons. Nevertheless, wherever possible these should be identified because the question of causation in cases where science fails to provide a satisfactory answer ‘must ultimately be seen as involving a question of satisfaction of the burden of proof’.[28]
[28] LexisNexis Butterworths, 5th ed., 2013 at pp 318-319 (omitting citations)
32.Purvis is binding on the Tribunal, as are High Court decisions explaining the modern approach to determining issues of causation.[29] In my opinion, the test for causation I am bound to apply by high authority is the ‘central question’ stated by the majority in Purvis. Thus, if the applicant establishes that she was treated unfavourably, the question is why was she treated that way? The question must be answered as a matter of common sense and experience, considering all relevant circumstances. The answer must identify the matters ‘because of’ which she was treated unfavourably – i.e. the reasons for her treatment. The applicant was directly discriminated against if one of the reasons was her disability.
Services
[29] ibid – see the cases cited in footnotes 87 at page 319
33.In this case, the issue is whether EML discriminated against the complainant in the provision of services because of her disability in breach of section 20 of the Discrimination Act.
34.Section 20 provides:
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person –
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
35.The meaning of ‘services’ in the Dictionary for the Discrimination Act is defined inclusively to mean, among other things, services provided by a government (in this case, the Territory, on whose behalf EML manages workers’ compensation claims).
36.Brennan CJ and McHugh J observed in IW that the term ‘services’ has a wide meaning and, in the context of anti-discrimination legislation, should be given a liberal construction, subject to this proviso:
Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term “service”, read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act should hold that that activity is a “service” for the purposes of the Act.[30]
[30] [1997] HCA 30; 191 CLR 1 at [12]
37.The applicant’s case is that EML is a ‘provider’ of services for the purposes of section 20, in that by managing or administering the applicant’s workers’ compensation payments and facilitating her medical treatments pursuant to the provisions of the SRC Act, EML provides (or was required to provide) ‘services’ to injured employees like the applicant. The applicant alleges that she was subject to both direct and indirect discrimination in the provision of those services. The respondent, on the other hand, denies that it provides ‘services’ of any kind to injured employees like the applicant.
Rebuttable presumptions
38.Section 53CA(2) and (3) of the HRC Act applies to a discrimination complaint referred to the ACAT and sets out the evidentiary requirements an applicant must meet for a rebuttable presumption to arise that discrimination has occurred and how the respondent may rebut the presumption:
(2) It is a rebuttable presumption that discrimination has occurred if the complainant –
(a) establishes that –
(i)for a complaint about direct discrimination – the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination – the condition or requirement has, or is likely to have, and effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation –
(i)for a complaint about direct discrimination – that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination – that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that –
(a)for a complaint about direct discrimination – the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination – the effect of disadvantaging a person is not because of a protected attribute of the other person.
The evidence
39.The primary source of evidence is EML’s case file, the contents of which are business records prepared contemporaneously with the events and communications they record. Primarily these comprise file notes in Annexure HJ-7 to the witness statement of Heidi James dated 31 August 2021. Ms James is, and at all relevant times was, the Team Manager in the Federal Self Insurance branch of EML’s Federal Self Insurance Division in Canberra and was responsible for supervising the case managers who had day-to-day conduct of the applicant’s claim. Ms James’s witness statement annexes other documents that are relevant to the applicant’s workers’ compensation claim and to the discrimination claims.
40.The applicant did not provide a formal witness statement, but relied on several documents which comprised partly a statement of the facts and evidence on which she relied, and partly submissions in support of her discrimination claims.
41.Although the applicant was not privy to the reasons for decisions made in relation to the management of her claim, in the end none of the material facts are controversial. The issue is whether they give rise to a claim of unlawful discrimination in the provision of services in breach of section 20 of the Discrimination Act.
42.It is necessary to examine the facts in some detail to understand EML’s reasons for acting as it did. This is essential to the analysis of causation.
Statutory entitlement to workers’ compensation
43.Before I refer in detail to the factual background to the Complaint, it is necessary to describe the statutory context in which the events occurred. The relevant legislation is the SRC Act, a Commonwealth law in force in the Territory.
44.An ‘injury’ is defined in section 5A(1) of the SRC Act to include a ‘disease’. Section 5B defines ‘disease’:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
45.Section 6 gives a non-exclusive description of circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment and includes circumstances where the injury was sustained while the employee was at the employee’s place of work for the purposes of that employment.
46.Part II of the SRC Act deals with compensation. Division 1 of Part II provides for compensation, among other things, for injuries (section 14), in respect of medical expenses (section 16) and for injuries resulting in incapacity (section 19).
47.Section 14(1) provides that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. In this case, EML (rather than Comcare) is liable to pay compensation on behalf of the Territory as a licensed self-insurer under the Act.
48.Section 16 provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
(4) An amount of compensation is payable by Comcare under subsection (1) is payable:
(a)if the employee has paid the cost of the medical treatment – to, or in accordance with the directions of, the employee; or
…
(c)in any other case – to the person to whom the cost is payable.
49.Section 19 provides for compensation for injuries resulting in incapacity (incapacity payments).
50.Part III of the SRC Act deals with rehabilitation. Division 2 of Part III provides for the approval of rehabilitation program providers. Division 3 provides for rehabilitation programs. Thus, for example, where an employee suffers an injury resulting in an incapacity for work, the rehabilitation authority may arrange for an assessment of the employee’s capability of undertaking a rehabilitation program.[31] Under section 41, Comcare may issue to rehabilitation authorities guidelines in relation to the performance or exercise of their functions or powers under Part III.
[31] Section 36(1) of the SRC Act
51.Part V of the SRC Act deals with claims for compensation. Section 53 includes notification requirements in relation to an injury to an employee. Section 54 provides that compensation is not payable under the Act unless a claim for compensation is made by or on behalf of the person under the section. Section 57 provides:
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
…
(5) Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
(6) An employee shall not be required to undergo an examination under this section at more frequent intervals that are specified by the Minister by legislative instrument.
52.The Safety, Rehabilitation and Compensation (Specification of Medical Examination Interval) Instrument 2019 (Cth) stipulates that, for the purposes of section 57(6) of the SRC Act, an employee shall not be required to undergo a medical examination by the same legally qualified medical practitioner nominated by the relevant authority under section 57 more frequently than at one-month intervals.
53.Part VI of the SRC Act deals with reconsideration and review of ‘determinations’. The definition of ‘determination’ in section 60(1) includes a determination, decision or requirement made under sections 14 and 16 (among others). Relevantly, a decision whether to accept liability under section 14, and a decision whether to pay compensation for the reasonable cost of appropriate medical treatment under section 16, is a ‘determination’ for the purpose of Part VI of the Act.
54.Section 62 authorises a determining authority (in this case, EML) to reconsider a determination made by it. A claimant (among others) may request a reconsideration. Section 62(3) requires that a request for reconsideration should set out the reasons for the request and imposes time limits for doing so. On receipt of a request the determining authority must reconsider the determination, or cause the determination to be reconsidered by a person to whom its powers under the section are delegated, not being the person who made, or was involved in making, the original determination. Pursuant to section 62(5), the person making the reconsideration decision may affirm, revoke, or vary the determination.
55.A reconsideration decision under section 62 is a ‘reviewable decision’.[32] Pursuant to section 64(1), the claimant or a corporation that holds a licence under Part VIII (in this case, the Territory) may apply to the Administrative Appeals Tribunal (AAT) for review of a reviewable decision.
The services EML was contracted to provide under the Administrator Agreement
[32] see sections 60(1), 63 of the SRC Act
56.Schedule 1 – ‘Statement of Requirements’ in the Administrator Agreement includes several components, the first of which, under the heading ‘Services’, describes, in clauses 2.1 to 2.5, the services that EML agreed to provide “to the Territory”.[33]
[33] Schedule 1 – Statement of Requirements, clause 1.1(a) (Annexure HJ-1, page 102)
57.Clause 2.1 – ‘Claims Administration Services’ states that EML “must provide the following Services on behalf of the Territory”:
(a) assess liability including initial liability and ongoing liability (eg assessments of reasonable and necessary medical requirements);
(b) Benefits calculation, authorisation and payments, including provisional liability for medical costs;
(c) case management, incorporating claims management strategies;
(d) integration with the Territory’s Injury Management Team to support best practice rehabilitation and return to work;
(e) administration of Reactivated Claims;
(f) payments to, and oversight of Service Providers (including providers of medical, allied health, rehabilitation and legal services) as advised by the Territory;
(g) management of Claims data (creation, retention, updating and archiving); and
(h) Injured Worker escalated matters and dispute management, including matters commenced with the Administrative Appeals Tribunal (AAT).[34]
[34] Schedule 1 – Statement of Requirements, clause 2.1 (Annexure HJ-1, page 102)
58.Clause 2.2 – ‘Territory Responsibility’, provided for the Territory to be responsible for exercising the rehabilitation authority functions under Part III of the SRC Act in accordance with the rehabilitation authority guidelines issued by Comcare under section 41 of the Act, and for management of rehabilitation Service Provider performance.
59.Clause 2.3 – ‘Performance’ required EML, among other things, to meet the requirements of the Territory’s self-insurance licence under the SRC Act in relation to claims management and the payment of benefits to injured workers.
60.Clause 2.4 – ‘Claims Management’ required EML to provide guidance to the relevant Territory Rehabilitation Team in relation to the management of claims.
61.Clause 2.5 – ‘Value Add Services’ required EML to provide ‘value add services’ which support the achievement of the Territory’s objectives, including building internal claims administration expertise, developing return to work and rehabilitation initiatives, staff health and well-being activities, and improving the work safety culture in the Territory.
62.An issue in this application is whether, as the applicant contends, EML provided services to persons who suffered a workplace injury by managing or administering their workers’ compensation payments and facilitating medical treatment or, as EML contends, EML provided services to the Territory alone. I consider this later.
Factual background
63.The applicant lodged a workers’ compensation claim on 3 July 2019. Christina Jacobsen was appointed as the applicant’s case manager the next day and commenced her assessment of the claim to determine whether EML should accept liability on behalf of the Territory under section 14 of the SRC Act.
64.During the assessment process the applicant told Ms Jacobsen in a telephone call on 23 July 2019 that “she had stopped her medication in approximately April last year and had been fine until this year when she realised she wasn’t coping with work and both her psychologist and her psychiatrist advised that this new episode was to do with her workplace”.[35] Doubts about whether the applicant’s condition was caused by her employment, or by her ceasing to take antipsychotic medication, figured prominently in the course of events that lead to the Complaint.
[35] Annexure HJ-7, page 3
65.By late August 2019, Ms Jacobsen completed her assessment and formed the opinion that the medical evidence did not support the applicant’s claim that her employment had contributed to a significant degree to her condition, but rather that the applicant’s condition arose because of her ceasing to take medication for the underlying pre-existing condition of schizophrenia. Ms Jacobsen discussed her views with the team leader, Ms James, who agreed with the assessment. Ms James explained her opinion in paragraph 60 of her witness statement:
Based on my review of the clinical information from the Applicant’s treating practitioners that, while they considered that there was a work place aggravation. there was a clear connection between the diminished ability to perform in her role and reduction of medication for her pre-existing condition. Further, the duration of her employment was considered, the nature of her duties was considered and the period at which she was most heightened was at the time that she was not taking the prescribed medication for her condition. All these factors were considered, including the conflicting information between the psychiatrist’s and general practitioner’s clinical records.[36]
[36] Witness statement of Heidi James dated 31 August 2021, paragraph 60
66.Ms James did not explain what she meant by “conflicting information”. I presume she was referring to the fact that the GP had given a diagnosis of “generalised anxiety”, whereas the psychiatrist diagnosed the applicant as having experienced an exacerbation of schizophrenia.
67.The kinds of considerations mentioned by Ms James are consistent with the matters that section 5B(2) of the SRC Act says may be considered in determining whether an ailment or aggravation of a disease was contributed to, to a significant degree, by an employee’s employment.
68.Ms James’ believed there was sufficient evidence, from a medical perspective, to deny liability and that it was not necessary for EML to require the applicant, under section 57 of the SRC Act, to attend an IME for the purpose of assessing liability.
69.On 2 September 2019, Ms Jacobsen gave notice of EML’s determination that the Territory was not liable to pay compensation to the applicant under section 14 of the SRC Act in respect of “generalised anxiety”.[37] Ms Jacobsen’s reasons included:
The timeline of weaning off medication and the increase in your workplace stress and challenges coincide. It is difficult to know as to whether you would have experienced the workplace issues if you continued taking your medication as your early months in the position, prior to weaning off medication, indicate your ability to cope with workplace tasks. From September 2018, you start to have issues with your work and the nature of your duties, which is also when your medication was reduced. I note that your employer has not indicated that your duties changed or were increased after September. Rather, your duties remain the same.
Based on the evidence before me, on the balance of probabilities, I am not satisfied that your condition was contributed to, to a significant degree, by your employment. I am satisfied that other non-employment factors, your weaning off the medication was significant in your experience in an increase of psychological symptoms.
Therefore, I have denied liability for your claim under section 14 of the SRC Act.[38]
[37] Annexure HJ-18
[38] Annexure HJ-18
70.The applicant telephoned Ms Jacobsen the next day, telling her it was wrong to say that being off her medication contributed to her condition, and advising her intention to request a reconsideration of the determination.
71.This prompted Ms Jacobsen to request Dr Luke Murphy, a forensic psychiatrist, to review the file and prepare a Board Medical Advisor Report. On 5 September 2019, Dr Murphy provided a brief written report in which he said:
It is abundantly clear that [the applicant] is doing everything she can to improve her mental health and remain at work.
[The applicant’s] mental health was stable before ceasing the Latuda and improved when she started taking it again.
The available evidence clearly supports the view that, if not for [the applicant] taking the calculated risk (which she understood and discussed with Dr Diamond), [the applicant] would not have experienced a temporary exacerbation of her pre-existing schizoaffective disorder in November 2018.[39]
[39] Annexure HJ-14
72.On 2 October 2019, the applicant submitted a request for reconsideration of the determination under section 62 of the SRC Act, with additional medical evidence from her treating psychiatrist, general practitioner and mental health social worker, and other supporting information and documentation. In giving reasons for the request, the applicant wrote:
For an unqualified administrative officer to make medical claims about medications and the severity of injury amounts to ignorant stereo typing. I am an individual with a mental health disability that is very well managed. I object in the strongest terms to an unqualified person who has barely met me, making assumptions and drawing conclusions that defy medical experience and knowledge. I believe this constitutes prejudice against my disability.[40]
[40] Annexure HJ-15
73.The reconsideration request was referred to Lauren Meggs, a Reconsideration Officer with EML. On 22 October 2019, Ms Meggs gave notice of her decision to revoke the original determination and substitute a determination that compensation was payable to the applicant under section 14 of the SRC Act for aggravation of schizophrenia. The date of the injury was deemed to be 8 November 2018. In relation to the question whether the applicant’s employment had contributed to a significant degree to the aggravation of schizophrenia, Ms Meggs wrote:
I note that all your treaters have considered that it is workplace stress that has caused your current symptom experience…
I note that your employer reported that there had been no increase or change to your role, and that clinical supervision was not a requirement. I note that you were asked to compile all issues into a register, for them to be directed to the most appropriate person for answer. However, you have reported feeling that it was still an expectation of you to resolve these issues.
Whilst there are some differences in the reporting of the circumstances, I note that most facts are substantiated between both you and your employer. However, it appears that it has been your perception of events, that have led you to seek medical treatment and incapacity for work.
I note the questions surrounding your ceasing medication, and the contribution that this factor has had. I note your treating practitioner’s reports surrounding the seriousness of this issue, and the manner in which it was undertaken. I note there are reports of you previously functioning well, both on and off medication.
Having regard to the entirety of the evidence, I am satisfied that your aggravation of schizophrenia has been significantly contributed to by your perception of workplace events that have occurred.[41]
[41] Annexure HJ-17, page 8
74.Ms James said that, while it was intended that Ms Meggs should consider Dr Murphy’s report mentioned earlier, this did not happen because Ms Jacobsen forgot to include a copy of the report in the applicant’s case file before it was sent to Ms Meggs, and Ms James was on leave at the time. Whether Dr Murphy’s report would have made any difference to the outcome is moot.
75.On 29 October 2019, the Territory’s Rehabilitation Case Manager, Sharna Groot, met with the applicant to discuss the case management strategy. The applicant asked Ms Groot to arrange for EML to assign a new case manager to replace Ms Jacobsen. The next day, EML appointed Marie-Daniel Marsh as the applicant’s case manager.
76.On 5 November 2019, Ms Daniel-Marsh telephoned the applicant to introduce herself. She advised the applicant that all medical expenses could be paid directly to the providers. The applicant requested that Ms Daniel-Marsh email the medical service providers to inform them how they should invoice EML. On the same day, Ms Daniel-Marsh notified the employer’s payroll team that the claim had been accepted and requested that incapacity payments be processes from the date of injury, which she identified incorrectly as 1 November 2018 instead of 8 November 2018.
77.On 6 November 2019, Ms Groot emailed Ms Daniel-Marsh:
As [the applicant’s] claim it is now accepted she just had a few questions. I’m going to call her back tomorrow so hoping you can assist:
…
2. [the applicant] currently has a support worker through NDIS. She has queried if EML can pay for this. Jess (in the past) and myself recently have advised her that this is not something that is provided under the Act. As she is still persisting, this may need to come from you.
3. Justin – Psychologist/Social Worker (It has not been clarified if Justin is a Psychologist or social worker) – [the applicant] is wanting to know if he can invoice EML and if so, where too [sic] etc.
Happy to discuss as this will likely be a little complex and we have to be mindful [the applicant] is not contactable by email.[42]
[42] Annexure HJ-7, page 9
78.Ms Daniel-Marsh emailed her reply the same day, with a copy to Ms James:
2. I do not believe EML is liable to pay for a support worker and worker’s compensation (Heidi [James] – please intervene if I am wrong).
3. Justine [sic] Purtle – I believe is a social worker…there is no indication on his correspondence and website that he is a qualified psychologist. We cannot pay him – he is not classified as an allied health professional or a qualified treating practitioner.
4. Our determinations are based on legally qualified medical practitioner’s (either [the applicant’s] treating GP or psychiatrist) recommendations (they will recommend certified treating specialists/practitioners – a social worker does not meet that criteria).[43]
[43] Annexure HJ-7, page 8
79.Ms Groot emailed Ms James and Ms Daniel-Marsh the next day:
Thanks ladies!
Are we thinking a 57 with a Forensic Psych?
Marie – Are you happy to have these conversations with [the applicant] fairly soon? I am happy to pop over for a meeting with the three of us ([the applicant] prefers to meet in person).[44]
[44] Annexure HJ-7, page 8
80.I assume “a 57” refers to an IME required under section 57 of the SRC Act.
81.Ms Daniel-Marsh arranged for a psychological assessment of the applicant by Dr Wayne Reid, a neuropsychologist, on 10 December 2019 and with Dr Doron Samuel, a psychiatrist, on 12 February 2020. Her file note dated 13 November 2019 records her reasons:
Due to IW’s underlying conditions – schizophrenic (unrelated to work) which conflicts with workplace injury and condition accepted – generalised anxiety, need to organize psychological assessment and IME.
82.I assume “IW” stands for “Injured Worker”.
83.Ms Daniel-Marsh spoke with the applicant by telephone on 15 November 2019 about the IME with the neuropsychologist. Her file note records that she “explained this is to assist her with her treatment needs and assess her current condition and capacity”.[45]
[45] Annexure HJ-7, page9
84.On 18 November 2019, Ms Daniel-Marsh emailed Mr Purtle:
Dr Horan has referred [the applicant] for psychological support/reviews and [the applicant] has stated you are her treating psychologist, just wondering if you are a registered allied health provider – psychologist? For treatment referrals the medical practitioner should be referring registered health providers.
EML has approved treatment for psychiatrist and psychology treatment for [the applicant’s] approved worker’s compensation injury/condition of generalised anxiety only. If you are not a registered treating psychologist EML will not approve the invoices for payment.
I think your services may come under National Disability Insurance Scheme (NDIS).[46]
[46] Annexure HJ-7, page 14
85.Mr Purtle replied the same day:
I am not a provider for NDIS.
I am a registered Allied Health Provider registered as a Mental Health Social Worker under Medicare. I provide Focused Psychologically [sic] Strategies and am required by Medicare to undertake the same professional development as psychologists to remain registered with Medicare.[47]
[47] Annexure HJ-7, page 14
86.Ms Daniel-Marsh reported Mr Purtle’s response to Ms Groot in a telephone call on 19 November 2019. Ms Daniel-Marsh’s file note records that Ms Groot said she was due to have a case conference with the applicant and her GP that day and that Ms Daniel-Marsh requested her to obtain further information about the treatment Mr Purtle was providing.
87.Ms Daniel-Marsh telephoned the applicant on 20 November 2019. Her file note records that the applicant voiced concerns about having to attend a neuropsychological assessment, and that she was given the following explanation:
- Advised IW EML is required to conduct an independent medical examination under the compensation Act
- This can be done before or after a claim is accepted, it is done every 6 to 12 months at times
- Advised IW this is to make sure we are managing claim and paying for treatments appropriately as per accepted condition of generalized anxiety (as I do not have a medical background)
- …
- Advised IW we want to ensure that her treatments are helping her with her accepted condition of “generalised anxiety” as per injury at previous work, having regard to the fact that she has an underlying condition of schizophrenia [48]
[48] Annexure HJ-7, page 15
88.Ms Daniel-Marsh wrote to Dr Reid on 21 November 2019, requesting him to undertake a psychological assessment of the applicant. His opinion was sought in response to a series of questions grouped under the following categories: ‘Diagnosis’, ‘Liability’, ‘Incapacity’ and ‘Medical Treatment’.
89.The letter stated Dr Reid’s opinion was required to “assist with EML to determine current liability and the assessment of [the applicant’s] claimed condition of generalised anxiety…”.[49]
[49] Annexure HJ-29
90.The questions asked of Dr Reid establish, in my opinion, that the main reason for requiring the applicant to undergo an IME at that time was to assist EML to determine whether the applicant continued to be entitled to compensation for a workplace injury under section 14 of the SRC Act. For example, under ‘Diagnosis’, EML asked whether “there are any aspects of clinical examination which indicate [the applicant] is malingering, intentionally producing or feigning physical or psychological signs or symptoms?”
91.Under ‘Liability’, EML asked:
1. Please provide your opinion in detail as to whether [the applicant’s] claimed condition of generalised anxiety (originally sustained on 1 November 2018 at her former employment with…Unit) is contributing to, to a significant degree at her current employment in the retail industry.
2. Do the circumstances of [the applicant’s] former employment with the…unit (workplace injury sustained on 1 November 2018) continue to contribute to a significant degree to the diagnosed accepted condition of generalised anxiety or the aggravation of any such condition currently? [50]
[50] Annexure HJ-29
92.Under ‘Incapacity’, EML asked:
1. Having regard to [the applicant’s] timeline and medical documentations does [the applicant] currently suffer an incapacity for work as a result of her claimed condition of generalised anxiety sustained on 1 November 2018?
…
2. [The applicant’s] workplace injury sustained on 1 November 2018 is for generalised anxiety due to workplace stress, [the applicant’s] last day at work was 15 May 2019. Having regard to [the applicant’s] underlying condition of schizophrenia (which is not accepted work-related injury), is Dr Horan’s return to work recommendations reasonable?
-Are there any aspects of the clinical examination which tend to suggest [the applicant] is:
a.Voluntarily exaggerating his [sic] symptoms
b.Displaying symptoms and examination findings inconsistent with her claimed condition of generalised anxiety (injury sustained on 1 November 2018)
…
3. Please explain in detail and identify the link between [the applicant’s] injury sustained on 1 November 2019 with her former employment and how this relates to her current condition of generalised anxiety and restrictions for work, as having partial capacity for work currently recommended by Dr Horan.
…
4. Are there any non-employment factors that affect [the applicant’s] capacity for employment due to her generalised anxiety injury sustained on 1 November 2018?
93.The reason EML gave to the applicant for requiring her to attend an IME – namely, to ensure she was receiving appropriate treatment for her accepted workplace injury – was mentioned, almost in passing, only in the last part of the brief, under ‘Medical Treatment’, where Dr Reid was asked whether the treatments the applicant received following the injury had assisted in improving or resolving her condition, and to recommend any other medical or rehabilitative treatment he considered the applicant reasonably required “in respect of her claimed condition of generalised anxiety” and to indicate whether such treatment formed part of a permanent improvement in the applicant’s health. Again, in my view, the primary focus of these questions was to help EML determine whether it should continue to accept liability to pay compensation for the applicant’s injury.
94.Ms Daniel-Marsh wrote to the applicant on 3 December 2019, to advise that her claim under section 16 of the SRC Act for compensation for reasonable medical expenses up to and including 17 December 2019 was accepted based on a medical certificate from the applicant’s GP recommending, among other things, that she “receive general practitioner consultations, medications related to your accepted compensable condition of generalised anxiety – antidepressant and antipsychotic. Psychiatrist reviews and psychology treatment”.[51] The applicant was advised that she must provide an ongoing medical certificate for workers’ compensation until her treating GP certified her fit for work and was asked to arrange a consultation with her GP for an assessment to enable EML to make a further determination in relation to compensation for medical expenses after 17 December 2019.
[51] Annexure HJ-19
95.An information sheet included with the letter said, under the heading ‘Requirements for Further Evidence’:
Compensation payments will be met up to a certain date. It may not be possible to reimburse you for expenses beyond the date specified in a “determination” unless further medical evidence provides clear connection between your employment and the compensable condition. If it is necessary for you to have medical treatment or time off work beyond the “determined” date, you will need to arrange with your treating medical practitioner or specialist, to provide further medical evidence for further consideration. The Medical Review Certificate provided to you by EML may be utilised for this purpose.[52]
[52] Annexure HJ-19
96.Later the same day, Ms Daniel-Marsh discussed with the applicant by telephone EML’s position in relation to paying for treatment provided by Mr Purtle. A file note records:
- Advised IW she is approved for psychiatrist and psychology treatment – when I say psychology treatment – the expert needs to be a registered psychologist and is an allied health provider.
- Advised we need to make sure the treatments she is getting for her work related injury of generalised anxiety is helping her.
- Reminded IW in regards to payment approvals and determination we rely heavily on medical evidence and must adhere to the compensation act. Having regard that I do not have a medical background.
- Advised IW I have requested Dr Horan her GP to call me back in regards to getting further info about Mr Purtle’s treatment plan.[53]
[53] Annexure HJ-7, page 19
97.On 3 December 2019, Ms Daniel-Marsh wrote to Mr Purtle:
I spoke to [the applicant] today and discussed any medical invoices and treatment reports concerning the management of her worker’s compensation claim should be directed to me to look after and she should not worry about this. I also spoke to Dr Horan to clarify a few things on the medical certificates and treatments she has listed for [the applicant].
Please find attached treatment notification plan form (we have discussed this before regarding needing more information about your credentials in your field), Dr Horan has noted your details on [the applicant’s] medical certificate for worker’s compensation for her accepted compensable condition of generalised anxiety (workplace injury). She has stated on [the applicant’s] medical certificate for worker’s compensation under treatment, that you are facilitating psychological support.
EML has approved [the applicant] for psychology treatment, for us to further determine whether your invoices fall under psychology treatment, can we please have further information and clarity on your treatment by submitting a treatment notification plan form…[54]
[54] Annexure HJ-7, page 20
98.The applicant attended the scheduled IME with Dr Reid on 10 December 2019. She described the experience in her written submissions:
[P]rior to Christmas I was sent by EML to a Neuropsychologist. I looked up this person and saw he specialised in brain injury or neuro diseases like dementia. I was horrified and spoke with EML about my concern that this was completely inappropriate for me, but my concerns were dismissed and I was told I had to go. The man himself was a nice person but it was a 4 hour assessment, with multiple puzzles, lists, mental arithmetic, general knowledge, sequential patterns, finished with a 300 question form focusing on alcohol, drugs and the like. I had one 20 minute break in the middle, but no offer of a glass of water, or any break between tests – they just came one after the other, and generally finished on a negative, when you started failing. It was a stressful and distressing assessment to go through and it took me days to recover from it.[55]
[55] Applicant’s submissions dated 6 January 2021 (filed on 5 August 2021), paragraph 3
99.The applicant discussed her concerns with Ms Groot, who in turn discussed them with Ms Daniel-Marsh. Ms Daniel-Marsh’s file note refers to Ms Groot as ‘RCM’, which I take to mean ‘Rehabilitation Case Manager’, and records the following:
RCM advised IW expressed her feedback about EML sending her to a psychological assessment
RCM advised IW stated the assessment made her feel de-moralised and in particular one question on alcohol and drugs and how it would make her feel being on it
RCM also advised IW was concerned why assessor was advising her to seek psychology treatment as he noted Justin Purtle – the social worker (that is providing psychological support) is not a registered psychologist. RCM noted she had already explained the process (prior) with claims and why treatment is important because it is to assist her recovery.
RCM advised IW felt like she was being bullied by EML having her sent to an assessor and noted the standard letter RE s57 appointment – stated if she did not attend her claim would potentially be suspended
RCM explained to IW that the purpose of s57 is to help assist with claims and treatment recommendations
Advised RCM that when she came to visit yesterday 11/12 in person, she did not mention how her assessment went and prior to the appointment she was explained in detail why we arrange s57’s and she had understood at the time, also advised RCM the time of her visit to EML, I had a senior case manager Simon Ellacott assist me (see notes 11/12 re: why she came to visit)
RCM advised IW is requesting 3 questions to be answered in writing, and will email details RE her conversation with IW as well
100.Ms Daniel-Marsh wrote to the applicant on 20 December 2019, replying to her questions:
I refer to your enquiry regarding your recent Independent Medical Examination on the 10 December 2019, that you had with Ms Sharna Groot, Rehabilitation Case Manager on the 12 December 2019.
Question 1. Why that particular assessment?
When you have made a claim for compensation under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) the relevant authority can request you to attend and Independent Medical Examination (IME) and undergo this assessment by a legally qualified medical practitioner under section 57 of the SRC Act.
Question 2. Why this specialist?
The relevant authority under section 57 of the SRC Act can choose a legally qualified medical practitioner nominated by the relevant authority. In this instance, you saw Dr Wayne Reid, consultant neuropsychologist and clinical psychologist who meets the qualifications and criteria under the SRC Act.
Question 3. What purpose/what was the anticipated outcome that will assist EML with her treatment/recovery?
Independent Medical examinations/assessments are for the purpose to seek a further independent medical opinion and review of your compensable condition and treatment recommendations.
101.In the week before Christmas 2019, Ms Daniel-Marsh and Mr Purtle exchanged emails about payment for treatment provided by Mr Purtle. Ms Daniel-Marsh maintained that to be eligible for payment the applicant’s psychological treatment had to be provided by an appropriately registered psychologist. As Mr Purtle did not meet that criterion, she determined that compensation was not payable in respect of his costs. She discussed her views with the Team Manager, Ms James, who agreed. In her witness statement, Ms James referred to the Treatment Notification Plan provided by Mr Purtle, parts of which he was unable to complete because the required information was outside the scope of his services. Ms James described the type of treatment Mr Purtle was providing as “social support services such as assistance with computers, lifts and driving as opposed to psychological treatment”.[56] Whether this is an appropriate description is not an issue that I must decide.
[56] Witness statement of Heidi James dated 31 August 2021, paragraph 96
102.Dr Reid prepared a detailed report for EML dated 6 January 2015. Under ‘Medical Treatment’ he made the following recommendations:
I am of the opinion [the applicant] requires further psychological management with a clinical psychologist using cognitive behaviour therapy to treat her condition of generalised anxiety in addition to seeing her psychiatrist Dr Diamond, prescribed medications and regular follow-up with her general practitioner and mental health social worker.
From her history her medication is having a positive effect on her earlier symptoms of schizophrenia which are now in remission and are assisting in her anxiety related symptoms and sleep disturbance. There is very strong evidence to suggest that her symptoms of generalised anxiety disorder, coping with stress and assertiveness training techniques would all have a positive effect on improving symptoms utilising cognitive behaviour therapy.
…
As stated above the medications she is currently being treated with have known benefits in treating psychotic symptoms, anxiety and depression. Assertiveness training will also assist her in managing her tendency to be submissive and tendency to not say no when delegated tasks she is not able to manage. The cognitive behaviour therapy is designed to treat her negative cognitions, irrational thinking and physiological symptoms of anxiety.
103.On 15 January 2020, Ms Daniel-Marsh spoke with the applicant by telephone. She advised the applicant that she had arranged an IME with a psychiatrist to review the neuropsychological report and to obtain a further medical opinion. The applicant asked Ms Daniel-Marsh to provide a copy of Dr Reid’s report to Mr Purtle, but the request was refused on the grounds that Mr Purtle was not a registered allied health provider.
104.On 17 January 2020, Ms Daniel-Marsh wrote to Dr Doron Samuell, a psychiatrist, confirming the arrangement for him to undertake an independent medical examination of the applicant and requesting that he prepare a report “to assist with EML to determine current liability and the assessment of [the applicant’s] claimed condition of generalised anxiety”.[57]
[57] Annexure HJ-34
105.On 20 January 2020, Ms Daniel-Marsh wrote to Dr Reid requesting that he prepare a supplementary report addressing the apparent connection Dr Luke Murphy referred to in his report dated 9 September 2019, between the applicant ceasing to take her prescribed medication and the onset of her stress-related symptoms at work.
106.On 22 January 2020, in a telephone call to Ms Daniel-Marsh, the applicant expressed concern about seeing Dr Samuell after reading negative reviews about him on a website called RateMDs. She offered to see someone else. Ms Daniel-Marsh told her the choice of an IME doctor was not a reviewable decision and, if she chose not to attend, her claim would be put on hold and she would not be entitled to receive incapacity payments until she attended the IME.
107.On 23 January 2020, Ms Daniel-Marsh wrote to the applicant enclosing her determination that the Territory was not liable to pay for treatment by Mr Purtle. The reasons for decision included:
Under the SRC Act, medical treatment includes therapeutic treatment by, or under the supervision of a registered ( under the law of the State or Territory) allied health practitioner/professionals as listed below:
· Medical practitioners
· Physiotherapist
· Pharmacist
· Psychologists
Mr Purtle it is not a registered allied health practitioner, therefore the treatment plan and invoices provided do not meet the definition of medical treatment under the SRC Act. Furthermore, whilst Mr Purtle has stated he has been seeing you since December 2011, he also notes he has been addressing your workplace anxiety (in his report dated 4 June 2019).
The treatment plan and reports provided do not measure or demonstrate the effectiveness of the treatment and is not in line with the Clinical Framework.
Section 16 of the SRC Act makes provision for payment of compensation for medical treatment that is reasonably required in relation to a compensable injury. Such treatment includes medical treatment by, or under the supervision of, a legally qualified medical practitioner, and therapeutic treatment obtained at the direction of a legally qualified medical practitioner.
Having regard to the available medical evidence and information, I am not satisfied that cognitive behavioural therapy provided by Mr Purtle constitutes medical treatment for the purposes of section 16 of the SRC Act. I have therefore decided that ACT Government is not liable to pay compensation for cognitive behavioural therapy provided by Mr Purtle under section 16 of the SRC Act.[58]
(c)if so, whether the unfavourable treatment was because the applicant had schizophrenia, in the sense that the applicant’s schizophrenia was a reason, even if not the dominant or substantial reason, for EML’s decision to refuse to pay for those costs; and
(d)whether the facts as found constitute a refusal to provide those services to the applicant in breach of section 20(a) of the Discrimination Act.
162.Discrimination Claim Two relates to a decision by EML to exercise its statutory power under section 57(1) of the SRC Act to require the applicant to attend an IME by a medical practitioner nominated by EML on 10 December 2019 and a second IME with a different medical practitioner on 12 February 2020 and, following the applicant’s refusal to attend the second IME, to impose the sanction provided by section 57(2) to suspend payment of the applicant’s workers’ compensation benefits.
163.The claim raises the following issues:
(a)Whether EML is a provider of ‘services’ to workers who have suffered a compensable workplace injury by managing and/or administering payment of their entitlement to reasonable medical expenses and by facilitating appropriate medical treatment on behalf of the Territory.
(b)Whether EML treated the applicant unfavourably by requiring her to attend an IME with a neuropsychologist, Dr Reid.
(c)Whether EML treated the applicant unfavourably by requiring her to attend a second IME two months later with a psychiatrist, initially nominated as Dr Samuell, later replaced by Dr Kar.
(d)Whether EML treated the applicant unfavourably by suspending her worker’s compensations payments until she agreed to attend the IME with Dr Kar.
(e)If so, whether the unfavourable treatment was because the applicant has schizophrenia in the sense that the applicant’s schizophrenia was a reason, even if not the dominant or substantial reason, for EML’s decision to require her to attend the IME.
(f)Whether the facts as found constitute discrimination in the terms or conditions on which, or the way in which, EML provided those services to the applicant in breach of section 20(b) and/or 20(c) of the Discrimination Act.
164.If I find that EML engaged in apparently unlawful discrimination, it will be necessary to consider whether, as EML contends:
(a)section 30(1)(a) of the Discrimination Act provides a defence;
(b)alternatively, whether the alleged unlawful acts were done under the authority of the SRC Act and therefore could not be unlawful for the purposes of the Discrimination Act; or
(c)if not, whether this gives rise to operational inconsistency between the Discrimination Act and the SRC Act, such that the provisions of the SRC Act should prevail.
Consideration
Discrimination Claim One
165.Discrimination Claim One invites attention to EML’s role where liability has been accepted under section 14 of the SRC Act in respect of an injury. Where an injured employee’s claim has been accepted, the employee has a statutory right to compensation under section 16 of the Act for reasonable medical treatment relating to the injury. In exercising its statutory duties under section 16 (as distinct from section 14 which, as I discuss later, involves different considerations) EML is required to determine whether medical treatment is reasonable for the injured employee to obtain in relation to the injury, and to determine the amount that is appropriate to pay for such treatment. Pursuant to section 16(4), compensation may be paid by reimbursing the employee for the cost of the medical treatment or by paying the service provider directly.
166.The occasion for EML to exercise its statutory duty to determine whether medical treatment is reasonable for an employee to obtain in relation to their injury, arises only where EML has determined that it is liable to pay compensation for the injury under section 14 of the SRC Act. A determination of liability under section 14 is an administrative decision that is not made ‘once-and-for-all’ when the claim is first determined. As noted earlier in these reasons, an information sheet EML provided to claimants advised that a determination under section 16 means that compensation for medical treatment will be paid up to a certain date, after which further medical evidence may be required that “provides clear connection between your employment and the compensable condition”.[87] The matter at issue is whether, considering the latest medical evidence, the claimant continues to suffer an ‘injury’ (within the meaning of the SRC Act) and, if so, whether the ‘injury’ continues to result in incapacity for work or impairment, which is the test for liability under section 14 of the Act.
[87] See paragraph 95
167.Even where liability is accepted under section 14, an issue may arise under section 16 whether medical treatment is ‘in relation to’ the injury and whether the treatment is ‘reasonable’. EML is liable to pay compensation for medical treatment only if it is both ‘in relation to’ the injury and ‘reasonable’. The investigative and deliberative process involved in a determination in respect of these issues is quasi-judicial in nature. It is inappropriate to describe this as providing a service to an injured employee.
168.However, where liability to pay for medical treatment is not in issue, a determination under section 16 as to the appropriate amount to pay for such treatment and whether costs should be reimbursed or paid directly to the service provider is appropriately described as an operational decision, which is intended to benefit the injured employee by facilitating the employee’s medical treatment and relieving them of the associated financial burden. I am satisfied that in making such determinations EML provides services by facilitating and paying for appropriate medical treatment in relation to an employee’s workplace injury.
169.The issue here is whether EML discriminated against the applicant on the grounds of disability by refusing to provide her with those services at a time when EML had accepted liability for her claim and to pay for medical treatment – specifically, by refusing to pay for operational support recommended by the applicant’s GP and for treatment provided by Mr Purtle, a mental health social worker, both of which the applicant claims fall within the definition of ‘medical treatment’ in section 4 of the SRC Act.
170.The evidence satisfies me that EML determined that the cost of operational support workers recommended by the applicant’s GP was not covered under section 16 of the SRC Act because it did not come within the definition of ‘medical treatment’ in section 4 of the Act. The applicant has assumed that EML’s decision to refuse payment was an unfavourable discretionary decision under section 16 of the SRC Act. This is incorrect. Section 16 of the SRC Act does not authorise EML to pay compensation for assistance or treatment that is not ‘medical treatment’. Whether a particular form of assistance or treatment is ‘medical treatment’ within the meaning of the Act, is partly a question of statutory interpretation and partly a question of fact. Whether ‘medical treatment’ is reasonable for the employee to obtain in relation to the injury is a question of fact, requiring an evaluative judgment to be made considering all the known circumstances. Only a determination as to the amount that is appropriate to pay for such ‘medical treatment’ involves the exercise of discretion.
171.The applicant contends that EML’s interpretation of the meaning of ‘medical treatment’ is wrong and therefore that her treatment was unfavourable. However, it is not this Tribunal’s role to decide whether the cost of operational support recommended by the applicant’s GP is ‘medical treatment’ within the meaning of section 4 of the SRC Act. It was open to the applicant to request a reconsideration of EML’s determination and, if she was dissatisfied with the reconsideration decision, to appeal the decision to the AAT, which was the appropriate forum to determine that dispute. Thus, I am not satisfied that EML’s refusal to pay for operational support was unfavourable treatment.
172.Even if EML’s interpretation was shown to be wrong, it would not help the applicant’s case. In that event she may be able to establish that the refusal amounted to unfavourable treatment, but she must also establish that EML’s refusal to pay for operational support was ‘because of’ her disability – specifically, as she puts it, because EML treated her as a schizophrenic who just needed to take her medication. The evidence satisfies me that this was not a reason for EML’s refusal. There is no evidence that EML considered the applicant did not need, or would not benefit from, operational support. Rather, EML refused to pay for operational support because it considered that operational support did not meet the definition of ‘medical treatment’, notwithstanding that such support was recommended by the applicant’s GP, and therefore was not compensable under section 16. Neither the fact that the applicant’s injury was identified as an aggravation of her existing condition, diagnosed as schizophrenia, nor the fact that the applicant’s treating medical practitioners had recommended a treatment regime that included anti-psychotic medication, was a reason for EML’s decision to refuse payment for operational support.
173.The same conclusion applies to EML’s decision to refuse to pay for the cost of Mr Purtle, the mental health social worker. EML accepted that psychological treatment was appropriate and was compensable if provided by a registered psychologist. The evidence establishes that there were two reasons why EML refused to pay Mr Purtle’s invoices. The first (and main) reason was because EML considered he was not a registered allied health practitioner (relevantly, a registered psychologist) which, as EML saw it, meant his treatment plan and invoices did not meet the definition of ‘medical treatment’ under the SRC Act. The second reason was that EML considered Mr Purtle’s treatment plan was unsatisfactory in that it did not measure or demonstrate the effectiveness of his proposed treatment of the applicant. It is not part of this Tribunal’s role to decide whether the criticism was justified.
174.The fact that the Territory later settled the applicant’s appeal to the AAT by agreeing to pay for those costs is not evidence that EML’s position was wrong. There can be many reasons for agreeing to settle a claim, including that it is commercially expedient. Nor is it evidence of discrimination on the grounds of disability. The settlement agreement was made without admissions. Even if it is assumed in the applicant’s favour that EML was clearly wrong to refuse payment of Mr Purtle’s invoices because of which the applicant was treated unfavourably – a finding that is not available on the evidence – the decision was made because of the earlier stated reasons and not the applicant’s disability.
175.As causation is not established, Discrimination Claim One must fail.
Discrimination Claim Two
176.The issue is whether EML discriminated against the applicant on the grounds of her disability in the terms on which EML provided services to the applicant, or in the way in which EML provided services to her – specifically, by requiring her to attend the IMEs with medical practitioners of its choice and by cutting off her compensation payments until she reversed her decision not to attend the second IME with the psychiatrist.
177.Discrimination Claim Two invites attention to EML’s role where liability under section 14 and and section 16 of the SRC Act remains in dispute, as was the case here, notwithstanding a decision had been made earlier to accept liability for the applicant’s claim.
178.The reconsideration decision made on 22 October 2019 to accept liability to pay compensation to the applicant in respect of her injury under section 14 of the SRC Act, was an administrative decision. The decision necessarily depended on the factual circumstances known to the EML Reconsideration Officer when the decision was made. The decision did not determine for all time the question whether the applicant’s employment contributed, to a significant degree, to the applicant’s injury. Nor did the decision determine the criteria against which EML should assess the progress of the applicant’s recovery from injury, nor how long the applicant would remain entitled to compensation for medical treatment related to her injury. It was open for EML to continue its enquiries and obtain new medical evidence relevant to those issues and to make a fresh determination of liability under section 14 of the SRC Act considering such evidence.
179.In performing its statutory duties and functions under section 14 of the SRC Act, EML must enquire into and determine whether it is liable to pay compensation on behalf of the Territory for an injury to an employee which results in death, incapacity for work, or impairment. Among other things, EML must determine whether the employee’s employment contributed to a significant degree to the injury. As I have said earlier, this is not a ‘once-and-for-all’ determination. As the injured employee undergoes treatment and as updated medical information becomes available, EML must further determine whether the employee continues to suffer an ‘injury’ (within the meaning of the SRC Act) and whether the ‘injury’ continues to result in incapacity for work or impairment. The evident statutory purpose served by section 57 of the SRC Act is to facilitate EML’s ability to investigate and make determinations in relation to these matters.
180.A determination of liability under section 14 of the SRC Act involves an investigative and deliberative process that is quasi-judicial in nature. In doing so, EML provides services to the Territory – relevantly, by considering and making determinations in relation to workers’ compensation claims against the Territory. Although from a claimant’s point of view the process may result in a benefit to the claimant (if liability is accepted), the process itself does not confer a benefit beyond a claimant’s statutory right to have their claim considered and determined in accordance with the statute. EML does not provide a service of accepting claims for compensation. Some claimants may have their claims accepted. Others may have their claim rejected. In my opinion, it would be incorrect to describe this as EML providing a service to one (successful) class of claimants, and refusing to provide a service to the other (unsuccessful) class of claimants.
181.I am satisfied that in performing its statutory duties and functions under section 14 of the SRC Act, EML does not provide ‘services’ to an injured employee.
182.I am also satisfied, as I have said earlier, that in performing its statutory duty under section 16 of the SRC Act to determine whether medical treatment is both ‘in relation to’ an injury and ‘reasonable’, EML does not provide services to an injured employee.
183.The evidence establishes that, from EML’s perspective, whether the applicant’s employment contributed to a significant degree to the applicant’s accepted condition, or whether she suffered a relapse of her underlying psychiatric condition because she stopped taking anti-psychotic medication, remained a live issue. The reconsideration decision by which EML accepted liability for the applicant’s injury did not resolve the concerns of the Case Manager and Team Manager. A limited desktop review of the medical evidence by Dr Murphy in early September 2019 provided support for their opinion. As I have explained earlier, the redetermination decision by which EML accepted liability for the applicant’s injury was not a ‘once-and-for-all’ determination of the issue of liability. Having doubts about the correctness of an administrative decision does constitute discrimination.
184.I am satisfied that EML required the applicant to attend the IMEs because it held doubts whether the applicant’s accepted condition was caused to a significant degree by her employment rather than by her stopping her medication, precipitating a relapse of her underlying condition of schizophrenia, and therefore whether the applicant had suffered an ‘injury’ for which EML was liable to pay compensation. EML was entitled to seek independent medical advice about this and to consider its current liability under section 14 of the SRC Act to pay compensation in light of that advice.
185.A further reason was because EML was concerned there was an apparent overlap between the applicant’s accepted condition of ‘generalised anxiety’ and her underlying condition of schizophrenia, making it difficult to determine whether current medical treatment she was receiving related to her accepted condition, for which EML was liable to pay compensation, or to her underlying condition of schizophrenia, which was not compensable. Again, EML was entitled to seek independent medical advice about this and to consider its current liability under section 16 of the SRC Act to pay for the applicant’s medical treatment in light of that advice.
186.The terms in which Dr Reid, Dr Samuell and Dr Karr were asked to undertake an assessment of the applicant satisfy me that EML’s purpose in requiring the applicant to attend the IMEs was to enable EML to obtain independent medical advice on which it could base a current assessment of its liability to pay compensation to the applicant under sections 14 and 16 of the SRC Act, in circumstances where liability remained in dispute from EML’s perspective.
187.Several conclusions flow from this.
188.First, the decision to exercise, and subsequently to enforce, EML’s rights under section 57 was not unfavourable treatment of the applicant, notwithstanding that it caused her distress. An independent medical assessment was necessary to enable EML to determine whether it had a current liability to pay compensation to the applicant. Although the applicant said she was “only into the third month of my claim” and believed “there was no cause whatever to trigger any medical assessment, let alone a second one”,[88] I am satisfied that EML had legitimate reasons for requiring the applicant to be independently assessed. The terms of section 57 make it clear that an assessment should be by a medical practitioner chosen by EML. The reasons for this are obvious. The applicant had no grounds to expect that she could choose, or that she should be consulted, about whom she should see.
[88] see paragraph 154
189.Second, as the earlier analysis of why the applicant was required to attend the IMEs shows, it was not ‘because of’ her schizophrenia. The necessary element of causation is absent.
190.Third, the applicant’s attendance at the IMEs was an integral part of the investigative and deliberative process involved in determining liability under sections 14 and 16, which I have described earlier as quasi-judicial in nature. In undertaking that process, EML was not providing services to the applicant. It was providing services to the Territory alone.
191.Discrimination Claim Two fails for these reasons.
Conclusion
192.In light of my earlier conclusions, it is unnecessary to consider the other issues EML raised by way of defence.
193.The appropriate order is that the application is dismissed.
………………………………..
Senior Member M Orlov
Date of hearing: 14 September 2021 Applicant: In person Counsel for the Respondent: Mr N Oram Solicitors for the Respondent: Mr B Gahan, HWL Ebsworth
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