Australian Taxation Office and Comcare (Compensation)
[2016] AATA 280
•2 May 2016
Australian Taxation Office and Comcare (Compensation) [2016] AATA 280 (2 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0654
Re
Australian Taxation Office
APPLICANT
And
Comcare
RESPONDENT
And
Olga Kusiak
OTHER PARTY
DECISION
Tribunal Deputy President Gary Humphries
Date 2 May 2016 Place Canberra The Tribunal does not have jurisdiction to make a declaration that Ms Kusiak has a reasonable excuse for not attending a medical appointment with Dr Skinner.
..................................[sgd]......................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – application for declaration that other party has reasonable excuse not to attend medical appointment – Tribunal’s jurisdiction to direct attendance – Tribunal’s discretion to determine procedure – application for declaration refused.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 36, 57
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 33
Cases
Richards and Comcare [2015] AATA 1031
Von Stieglitz and Comcare [2012] AATA 729
REASONS FOR DECISION
Deputy President Gary Humphries
2 May 2016
The Tribunal has no jurisdiction to compel Ms Kusiak to attend a medical appointment with Dr Skinner, or to direct that she not attend such an appointment. The application is refused.
Background
The other party in these proceedings, Olga Kusiak, suffered a neck sprain (right) while employed by the Australian Taxation Office (the ATO). This condition was accepted by Comcare by determination dated 10 May 2011. On 13 June 2014 Comcare issued a further determination which indicated that Ms Kusiak had no present entitlement to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 21 August 2014 Comcare affirmed the decision of 13 June 2014 but noted that the issue of whether Ms Kusiak suffered from a further condition was being remitted to a Claims Services Officer to determine. On 10 October 2014 Comcare accepted liability for cervicobrachial pain disorder under s 14 of the SRC Act.
The ATO then took the unusual step of seeking reconsideration of Comcare’s determination accepting liability for Ms Kusiak’s cervicobrachial pain disorder. Comcare affirmed the determination on 16 January 2015, and on 13 February 2015 the ATO sought to have that decision reviewed by this Tribunal.
As the review process has proceeded, Ms Kusiak has been required to attend a number of medical appointments. Specifically, on 30 July 2015 she attended an appointment with Dr Graeme Edwards. Dr Edwards subsequently produced a detailed report in which he commented that Over the past four years in particular, there has been a major restructure of our understanding of the persistent pain disorders... Dr Edwards also recommended further investigations in relation to the claim. Pursuant to that recommendation, on 15 February 2016 lawyers for the ATO advised the other party by email that a medical appointment had been made for her to attend on Dr Yvonne Skinner, forensic psychiatrist, in Sydney on 7 June 2016. The email also indicated that the ATO would seek to have Ms Kusiak undergo a sleep study and an MRI prior to attending Dr Skinner’s examination.
The other party then made an application to the Tribunal for an order that she not be compelled to attend the appointment with Dr Skinner. In an email dated 18 February 2016, the other party stated that she had already attended on nine medical practitioners in the preceding two or three years in relation to her claim, and that being required to attend upon yet a further specialist is an instrument of oppression.
A directions hearing was conducted by teleconference on 29 February and 3 March 2016, to deal with Ms Kusiak’s application. After hearing all three parties, I determined that I would not grant the application. The other party asked for written reasons for this decision, which I undertook to provide.
As I undertook the writing of the reasons for my decision, however, it became apparent that an issue of jurisdiction arose which had not been adequately canvassed at the directions hearings. Accordingly, a further directions hearing was conducted by telephone on 4 April 2016, for the purpose of considering what power was available to the Tribunal to direct a party to proceedings to attend a medical appointment. After hearing the parties on that day, I reserved my decision.
I now refuse the application sought by the other party, on the ground that the Tribunal has no jurisdiction to make an order of the kind requested. My written reasons follow below.
Legislative framework
The email of 15 February 2016, advising that an appointment had been made for Ms Kusiak to attend Dr Skinner, reads like an invitation rather than a direction. It was subsequently interpreted by all parties during the directions hearings as a direction to attend, and the Tribunal also treats it as such. There are two provisions of the SRC Act by which a claimant for compensation may be compelled to attend a medical examination. The first is s 36, which provides:
Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such 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.
(4A) However, subsection (4) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension…
In addition, s 57 creates a general power to require a claimant to undertake a medical examination:
Power to require medical examination
(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…
It is readily evident that these provisions of the SRC Act confer powers on a rehabilitation authority or a relevant authority (typically the employing agency or Comcare) to require an employee claiming a compensable injury to variously undertake an assessment or a medical examination, as the case requires. Sanctions – specifically the suspension of their rights to pursue compensation under the Act – are imposed on an employee who fails to undergo the relevant assessment or examination.
The question facing the Tribunal in the present application is whether the Tribunal itself has the capacity to exercise either of the powers conferred by the provisions referred to above in lieu of the authority upon whom they are specifically conferred, or to review such powers as they are exercised by an authority in such a way that it can substitute a different decision to the one made by that authority.
The Tribunal’s power to review decisions
The Tribunal has no intrinsic authority to review (and substitute) decisions made by government agencies or licensees. Its power to do so in respect of government agencies derives from s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act):
Tribunal may review certain decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In the case of the SRC Act, s 64 makes provision for a claimant to apply to the Tribunal for review of a reviewable decision. Section 60(1) defines a reviewable decision to mean a decision made under subsection 38(4) or s 62.
Section 38(4), in turn, deals with the power of Comcare to review a decision by a rehabilitation authority to determine either that an employee is capable of undertaking a rehabilitation program or should in fact undertake such a program. It appears not to be relevant to the circumstances of this application. Section 62 refers to decisions made under s 36, but does not refer to decisions made under s 57. From this construction it seems clear that the Tribunal has the power to review a decision to require an employee to undergo an examination, pursuant to s 36(3), for the purpose of assessing his or her capability of undertaking a rehabilitation program. It is also clear that the Tribunal has no power to review a decision under s 57(1) to require an employee to undergo an examination by a medical practitioner, nor does it have the power to make a declaration that an employee has a reasonable excuse under s 57(2) for refusing to attend a medical appointment at some point in the future: Richards and Comcare [2015] AATA 1031 at [19].
Consideration
Ms Kusiak is reluctant to attend a further medical appointment. She can only be required to do so if an appropriate legislative power is available to compel her. I will consider each of the possible sources of compulsion available to the ATO.
Section 36
As already mentioned, the Tribunal appears to have the power to review a decision of a rehabilitation authority to require an employee to undergo an examination for the purpose of assessing the employee’s capability of undertaking a rehabilitation program (s 36(1)). The following questions then arise: is the ATO a rehabilitation authority, and has it directed Ms Kusiak to undergo an examination for the purpose referred to in s 36?
No evidence was before the Tribunal at the hearings as to whether the ATO had been designated a rehabilitation authority (see s 4(1)). However, even if it had been so designated, it appears clear that it was not exercising the power in s 36 in requiring Ms Kusiak to attend an appointment with Dr Skinner. On the Tribunal file is an email from Ms Kusiak’s representative to Comcare’s representative in which the former urges the latter to stop the use of a s36 report for collateral unauthorised s57 purposes. However in the submissions by parties in the hearings, s 36 was not relied on as the basis for the ATO’s direction. Even if it had been, it appears clear from the evidence overall that the purpose of the medical examination with Dr Skinner is not to assess Ms Kusiak’s capability of undertaking a rehabilitation program but rather to assess the basis of her overall claim for compensation under the Act.
Section 57
At the hearings, the ATO’s representative cited s 57 as the basis for its direction to Ms Kusiak. Generally speaking, s 57 should be considered the proper basis on which to require an employee to undergo a medical examination to assess a claim for compensation under the Act. However, in the present circumstances two difficulties arise with that course of action.
The first is that the section stipulates that the relevant authority may require the employee to undergo an examination. Section 4(1) defines relevant authority to mean:
(a) in relation to an employee who is employed by a licensee—the licensee; and
(b) in relation to any other employee—Comcare.
Accordingly, unless the ATO is a licensee – and there was no evidence before the Tribunal to this effect – it lacks the power to issue a direction under s 57.
The second difficulty is that, even if it were a licensee, or if Comcare were to issue the direction to attend the medical examination on behalf of the ATO, the Tribunal lacks the jurisdiction to intervene at this point. As already mentioned, the Tribunal cannot review a decision under s 57(1) to require an employee to undergo an examination by a medical practitioner, nor does it have the power to make a declaration that an employee has a reasonable excuse under s 57(2) for refusing to attend a medical appointment at some point in the future.
Of course, the Tribunal’s jurisdiction is not ousted completely in relation to s 57. As Member Webb indicated in Von Stieglitz and Comcare [2012] AATA 729, the question of whether the section has been legitimately used to suspend an employee’s rights under the Act arises ex post facto:
If Ms von Stieglitz refuses or fails to undergo the examination and seeks to advance her review proceedings, it will then be necessary for the Tribunal to determine whether or not it has jurisdiction to proceed with her application. In that context, and for that purpose, alone, it will be necessary for the Tribunal to determine the jurisdictional facts, namely whether Ms von Stieglitz refused or failed to undergo a medical examination required under s 57(1), and if so, whether she had a reasonable excuse for refusing or failing to do so in the particular circumstances, having regard to the “text, context and purpose” of the section.[1]
Section 33 of the AAT Act
[1] Von Stieglitz and Comcare [2012] AATA 729 at [14].
Some suggestion was entertained during the hearings as to whether the general power conferred on the Tribunal under s 33 of the AAT Act to supervise the conduct of proceedings before it could be used to compel a party to attend a medical examination. The Tribunal as presently constituted considers that it does not. The possibility that s 33 conferred the power to compel a witness in this way was considered in Von Stieglitz, where Member Webb observed:
Comcare urged me to make orders requiring Ms von Stieglitz to attend the appointment, using the power vested in the Tribunal to determine its own procedure. To my mind there are serious questions (and doubts) about this. Firstly, it is questionable whether the Tribunal’s discretion to determine procedure under s 33(1) of the Administrative Appeals Tribunal Act 1975 extends power to compel a person in Ms von Stieglitz’s circumstances to attend a medico-legal examination in order for Comcare to obtain evidence in proceedings to which she is a party. Even if there is power, the proposition raises serious questions of procedural fairness and natural justice.[2]
[2] Von Stieglitz and Comcare [2012] AATA 729 at [16].
Conclusion
The Tribunal does not have jurisdiction to make a declaration regarding the medical appointment made by the ATO for Ms Kusiak to attend on Dr Skinner.
The Tribunal decides that the applicant cannot compel Ms Kusiak to attend the medical appointment under s 57 of the SRC Act. However, if the applicant does have such a power, the Tribunal itself has no jurisdiction to review such a decision.
It is not appropriate in the circumstances for the Tribunal to exercise its discretion in relation to procedure under s 33(1) of the AAT Act.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries .............................[sgd]..............................
Dated 2 May 2016
Dates of hearing 29 February, 3 March and 4 April 2016 Solicitors for the Applicant HWL Ebsworth Lawyers Solicitors for the Respondent Sparke Helmore Solicitors for the Other Party Lander & Co
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