Barthel and Australian National University (Compensation)
[2019] AATA 548
•27 March 2019
Barthel and Australian National University (Compensation) [2019] AATA 548 (27 March 2019)
Division:GENERAL DIVISION
File Number(s):2016/2584
Re:Nadine Barthel
APPLICANT
AndAustralian National University
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 March 2019
Place:Canberra
The application for dismissal is refused.
........................................................................
Mr S. Webb, Member
PRACTICE & PROCEDURE – application for dismissal – meaning of ‘no reasonable prospect of success’ – sufficiency of probative materials – expert reports – rationale of expert opinion – contrary medical reports – weight – evaluation of prospect of success – application refused
Administrative Appeals Tribunal Act 1975, s 2A, 42B
Federal Court of Australia Act 1976, s 31A
Safety, Rehabilitation and Compensation Act 1988, ss 16, 19Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60
Oliver and Comcare [2018] AATA 1964
Spencer v Commonwealth of Australia [2010] HCA 28REASONS FOR DECISION
Mr S. Webb, Member
27 March 2019
Nadine Barthel was employed as a research technician by the Australian National University (ANU). Repetitively using pipettes, she experienced symptoms that were later diagnosed as bilateral carpal tunnel syndrome. She claimed and was paid compensation by Comcare, then managing her claim. Her carpal tunnel syndrome was treated surgically. Subsequently, by primary determination and a reconsideration decision, Comcare decided that she no longer suffered the effects of injury, bringing compensation for incapacity and medical treatment to an end. Ms Barthel applied for review. She contests this decision on grounds that, post-surgically, she continued to experience debilitating symptoms in both wrists and hands.
The ANU presently is responsible for her claim, having taken it over from Comcare.
The ANU applied for Ms Barthel’s application for review to be dismissed for want of merit, under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) –
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
It is this issue, alone, that presently arises to be dealt with. The substantive application is set down to be heard on 4 and 5 April 2019.
RELEVANT FACTS
The relevant facts arising from the materials follow.
On 30 June 2014, Dr Harcourt, a general practitioner, diagnosed bilateral carpal tunnel syndrome, noting numbness in the thumb, index and middle fingers and a positive phalen’s test on the left.[1]
[1] T7.
On 1 July 2014, Ms Barthel completed an Incident Report recording that she suffered carpal tunnel syndrome on 30 April 2014 as a result of repetitive pipetting in the course of employment.[2]
[2] T8.
On 24 July 2014, Ms Barthel lodged a claim for compensation in respect of bilateral carpal tunnel syndrome.[3]
[3] T12.
On 2 October 2014, Dr Andrews (a neurologist) conducted nerve conduction tests and, on 3 October 2014, reported carpal tunnel syndrome, mild on the left and moderate on the right.[4]
[4] T24.
On 10 October 2014, Comcare accepted liability for Ms Barthel’s carpal tunnel syndrome as an employment-related injury, with a deemed date of injury of 30 June 2014.[5]
[5] T2.
In November 2014, Ms Barthel returned to Germany, where she consulted Dr Junger (a general practitioner) about her bilateral carpal tunnel syndrome. Dr Junger referred her to Dr Mitzscherling (an orthopaedic and hand surgeon).
On 8 December 2014, Ms Barthel’s employment contract with the ANU came to an end.
Dr Mitzscherling carried out carpal tunnel syndrome release surgery on the left median nerve in January 2015 and on her right median nerve on 4 March 2015. On 16 March 2015, Dr Mitzscherling reported that the healing process was “uncomplicated”.[6]
[6] T164.
Ms Bartel was referred for physiotherapy.
She says she continued to experience symptoms in her wrists and reduced function in her hands, especially with weight bearing, hand writing and similar activities.
On 21 January 2016, Ms Barthel again consulted Dr Mitzscherling, who subsequently reported that –
Her complaint was unspecific pain in her left hand. This was diagnosed as a persistent pain after she has had Surgery in my clinic due to carpal tunnel syndrome in March 2015.
She was referred for neurological evaluation. After this appointment she did not present herself in my clinic again.[7]
[7] Report of Dr Mitzscherling, 8 September 2016.
On 10 February 2016, Dr Lutze (a neurosurgeon) examined Ms Barthel and noted bilateral wrist pain but not sensory deficit in her hands or fingers. He issued a medical certificate and arranged further nerve conduction testing.
On 11 February 2016, Comcare determined that Ms Barthel had no present entitlement to compensation for medical treatment expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and incapacity for work under s 19 of that Act.[8]
[8] T187.
Ms Barthel requested reconsideration of this decision.
On 9 March 2016, Comcare affirmed its determination in a reconsideration decision.[9]
[9] T198.
On 15 March 2016, Dr Horaczek (a neurologist) conducted nerve conduction studies and reported –
“Die neurographischen Befunde sprechen fur ein diskretes Carpaltunnelsyndrom rechts und ein leichtes Carpaltunnelsyndrom links”.
That day, Dr Lutze issued a medical certificate in which he referred to clinical examination findings of bilateral wrist pain.
Ms Barthel asserts that she continued to experienced bilateral symptoms in her wrists, affecting her hands.
On 9 September 2016, Dr Horaczek issued a medical certificate in which he reported –
“[Ms Barthel] complained of bilateral wrist pain but not sensory deficit in her hands or fingers I arranged a nerve conduction study which confirmed only minimal medial nerve conduction delay suggestive of slight residual carpal tunnel syndromes in both hands. I did not think that a neurosurgical procedure is indicated and suggested a consultation with a hand surgeon to rule out other pathology in the wrist area.”
On 24 October 2016, Associate Professor Boyce (a neurologist), reported to Comcare that, as Ms Barthel’s transverse carpal ligaments had been surgically transected, his diagnosis of Ms Barthel’s subsequent symptoms is “a non-specific pain syndrome in the hands” which “is unlikely to be carpal tunnel syndrome”.[10] He recommended review by a hand surgeon and was of the opinion that Ms Barthel “has a different condition from that in respect of which Comcare originally accepted liability”[11] that is unrelated to her previous employment.[12] Associate Professor Boyce reported that “I have strongly suggested review by a forensic neuropsychologist looking for evidence of symptom magnification and/or need for a referral for psychiatric assessment”.[13]
[10] Report of Associate Professor Boyce, 24 October 2016, page 5.
[11] Ibid.
[12] Ibid, page 6.
[13] Ibid, page 9.
On 12 April 2017, Dr Horaczek conducted further nerve conduction studies that were reported to show –
“Discrete carpal tunnel syndrome right
Slight carpal tunnel syndrome left” [14]
[14] Translation of Dr Horaczek’s 12 April 2017 report by Dr Haag.
On 19 April 2017, Dr Dogan (an orthopaedic surgeon) examined Ms Barthel and issued a medical certificate which has been translated by Dr Leibig and provided to the Tribunal. Dr Dogan set out Ms Barthel’s post-surgical progress and noted that –
“To date, the patient is still experiencing pain and has only limited use of her hands in everyday life and work. The tingling sensation is less pronounced and only occurs at rare occasions and at night.
Physical examination on April 19, 2017: Phalen’s test negative, free movement of both wrists, external pressure on carpal tunnel region is painful.”
On 24 April 2017, Ms Barthel consulted Dr Thomas (an orthopaedic surgeon). Dr Thomas reported a diagnosis of bilateral carpal tunnel syndrome and said –
“Therapy: Consultation, PE, regular status after bilateral surgery for carpal tunnel syndrome. Local pain after this type of surgery is quite frequent at 6-month post-op and may last for several years.”
On 1 March 2019, Dr McGlynn (a hand and plastic surgeon) provided a report to Comcare. In respect of diagnosis, Dr McGlynn reported –
“On the evidence before me it is not possible to make a definite diagnosis of her [Ms Barthel’s] wrist/forearm complaints as at 11 February2016. There is no diagnostic test result that leads to a specific diagnosis. Dr Lutze who examined her on 10 February 2016 did not reach a diagnosis and recommended assessment by a hand surgeon looking for other pathology in the wrist area. This hand surgery assessment does not appear to have occurred.
It is possible to say her symptoms are not consistent with recurrence or persistence of carpal tunnel syndrome and the nerve conduction study of 2016 supports this finding.
…
In my opinion it is more likely than not the bilateral carpal tunnel syndrome she was diagnosed with in April 2014 has ceased…
…
I have seen the nerve conduction study … [from 2016] and the conduction speeds and amplitudes indicate very mild right and minimal left side nerve slowing. This is a not uncommon finding following median nerve decompression for carpal tunnel syndrome. The pressure on the nerve is released, but conduction speeds and amplitudes can remain slightly below normal.
Of significance is the consultation history provided by Dr Lutze that on the day of consultation, Ms Barthel complained of bilateral wrist pain but not of sensory deficit in her hands or fingers. The minimal abnormal findings of the German nerve conduction study done in March 2016 are not related to her symptoms…” [15]
[15] Report of Dr McGlynn, 1 March 2019, pages 5-6.
ISSUES
The substantive issue arising in Ms Barthel’s application for review is whether she continued to experience the effects of previously accepted, employment-related bilateral carpal tunnel syndrome injury as of 11 February 2016 and, consequentially, whether she is entitled to compensation for medical treatment expenses under s 16 of the SRC Act and compensation for incapacity to work under s 19 (or related provisions) of that Act.
The issues for determination presently, in respect of the ANU’s dismissal application under s 42B(1)(b) of the AAT Act, are –
(a)Whether Ms Barthel’s application has no reasonable prospect of success; and if so
(b)Whether the discretion to dismiss her application should be exercised.
PROSPECT OF SUCCESS
Ms Barthel says her application should not be dismissed as she continues to experience symptoms in her wrists and hands for which the ANU should be liable.
The ANU asserts that Ms Barthel’s application has no reasonable prospect of success, and it should be dismissed. In the ANU’s submission, Ms Barthel has not produced evidence of sufficient quality and weight for her case to succeed.
The ANU maintains that the expert evidence all goes one way – Ms Barthel’s carpal tunnel syndrome was successfully resolved by surgery in 2015, and the subsequent bilateral forearm and hand symptoms Ms Barthel complains of from 2016 have not yet been diagnosed. The ANU says the essential causal nexus between those symptoms and her previous employment (which ended in December 2014) is not made out on the present materials. In the ANU’s submission, Ms Barthel has not produced sufficient materials of probative value to establish a contrary proposition. For this reason, the ANU argues that it’s liability to pay compensation under s 16 and s 19 of the SRC Act in respect of Ms Barthel’s carpal tunnel syndrome injury was legitimately determined to have ended on 11 February 2016 and, on the present materials, Ms Barthel has no reasonable prospect of succeeding in her application. For this reason, and having regard to the objectives of the Tribunal set out in s 2A of the AAT Act, the ANU contends the application should be dismissed.
The matter is to be determined under s 42B(1) of the AAT Act. This section was amended in 2014 and a new s 42B(1)(b) came into effect, extending the discretion to dismiss an application to include circumstances where the Tribunal is reasonably satisfied the application has no reasonable prospect of success. Clearly enough, this phrase refers to the prospects of an application rather than particular characteristics or qualities of an application dealt with in other parts of s 42B(1) - ‘frivolous, vexatious, misconceived or lacking in substance’ (s 42B(1)(a)), or ‘otherwise an abuse of the process of the Tribunal’ (42B(1)(c)). It requires the Tribunal to consider the totality of materials placed before it and decide if there is a reasonable prospect of the application succeeding. If the Tribunal is satisfied there is no such prospect, then the discretion to dismiss the application is enlivened, and the Tribunal must then determine if it is appropriate to exercise the discretion in all the relevant circumstances.
The discretion to dismiss an application is a power that should be exercised cautiously. Dismissal of an application curtails merits review of the decision contested by an applicant. It is a power that must be exercised in the context of and in conformity with the AAT Act, which establishes the Tribunal for the purposes of providing merits review of government and provides –
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
The phrase ‘no reasonable prospect of success’ must be construed as a whole, without gloss.[16] Clearly enough, in order to determine if a particular case has no reasonable prospect of success, a decision maker must assess whether any reasonable prospect of the case succeeding exists. A case that is more than hopeless or necessarily bound to fail,[17] or one that is more than fanciful,[18] may still be found to have ‘no reasonable prospect of success’. Where a case is found to have some prospect of succeeding, the key test for the purposes of s 42B(1)(b) of the AAT Act is whether it is below the threshold for a reasonable prospect of success.
[16] Spencer v Commonwealth of Australia [2010] HCA 28, per Hayne, Crennan, Keiffel and Bell JJ at [58]-[60].
[17] Ibid, at [52]-[60].
[18] Ibid, per French CJ and Gummow J at [25].
Even though the phrase ‘no reasonable prospect of success’ is not to be disaggregated in pursuit of meaning, it is appropriate to observe that it is capable of two interpretations where, on the one hand, ‘reasonable’ may be taken to refer to a measure of the prospect of success, and on the other hand, it may be taken to refer to the arguable or rational basis of such a prospect. Perhaps the difference is immaterial in the aggregate phrase as both meanings describe a threshold below which an application may be found to have no reasonable prospect of success. Where that threshold lies in any particular case is a matter about which reasonable minds may differ.
A preliminary assessment of the whole of the material placed before the Tribunal is required when evaluating a party’s prospect of success with a critical eye and deciding if there is a real factual or legal question capable of being decided in that party’s favour. In particular, this task requires an assessment of the extent to which, if at all, there are probative materials – evidence of sufficient quality and weight – sufficient to make out the particular case under the applicable statute.[19] In this preliminary assessment, the Tribunal should not refuse an application for dismissal on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.[20]
[19] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60, per Finklestein J at [23] when considering s 31A of the Federal Court of Australia Act 1976, as it stood at the time.
[20] Ibid, per Gordon J at [132].
This is not to say that a claim supported by few materials should be found to have no reasonable prospect of success. If there is a real issue of fact or a real issue of law capable of being decided in favour of the party resisting dismissal under s 42B(1)(b), then the application should be allowed to proceed.[21] Conversely, a case attended by many materials may be found to have no reasonable prospect of succeeding. It is the probative value of the materials that is important, not the volume.
[21] Ibid, per Rares J at [74].
Furthermore, in some cases, the contest arising in respect of a claim may have a legal rather than factual character relating, for example, to proper construction of the particular statutory provision under which the claim is to be decided. In such a case, many facts may be agreed and few probative materials may be given to the Tribunal. This notwithstanding, where some ambiguity exists in the applicable legislation, or where the state of the law is not clear or settled, even though the applicant’s case may not be strong, the person may still have a reasonable case to argue, such that it rises above the ‘no reasonable prospect of success’ threshold.
It is quite clear that the power of summary dismissal of an application should be exercised cautiously. The power conferred strikes a balance between assisting the Tribunal to control costs and delays in cases where there is no reasonable prospect of success, on the one hand, and ensuring that no injustice is done to a party, on the other.[22] The consequence of dismissal or refusal to dismiss should not be ignored in ensuring fairness and justice to the parties involved in the proceedings when deciding to exercise the discretion conferred by s 42B(1) of the AAT Act. Dismissal curtails an applicant’s access to merits review of a contested decision.
[22] Ibid, per Gordon J at [125].
Much was said during the dismissal hearing about the recent Tribunal decision in Oliver and Comcare[23] (Oliver’s case). About this decision there are three things I should say immediately.
[23] [2018] AATA 1964.
The decision sets out the Deputy President’s construction of s 42B(1). Even though this is not binding, I respectfully agree with what the Deputy President said about principle.
Nevertheless, there are three points I should address.
Firstly, the Tribunal is not a court. Despite the ANU’s submissions, I am not persuaded that Oliver’s case is authority for the proposition that expert evidence is required in Tribunal proceedings, or in interlocutory issues of the present kind. The Deputy President said no such thing. Had he done so, I would respectfully disagree. Very many cases in the Tribunal are conducted most satisfactorily without expert evidence of any kind. There is nothing in the AAT Act that requires it. To require expert evidence in such cases would increase the costs and time required. A requirement of that kind may also create an imbalance between parties capable of paying for expert opinions and those who are incapable of doing so, to the extent that unfairness may result. Nevertheless, where expert opinion is given in evidence in Tribunal proceedings, it will be considered and evaluated in the usual way.
Secondly, the task of deciding if the discretion to dismiss an application under s 42B(1)(b) of the AAT Act should be exercised is not one of choosing winners – the test to be applied is whether the particular case has no reasonable prospect of success. This requires an assessment of all the materials placed before the Tribunal to determine whether probative materials exist which, if accepted, are sufficient to make out the particular case. If the Tribunal is satisfied that the materials are not sufficient to make out the particular case, then it may be said that it has no reasonable prospect of success.
The assessment of sufficiency should be made on the present materials even though, in the usual run of cases, these will not have been subject to testing, by examination of witnesses for example. Testing of that kind is best left for when the substantive application is heard. Speculation about materials that may be given in the future, or evidence that may be given at the substantive hearing is not appropriate; nor is it necessary or appropriate to speculate about the weight that may be given to particular materials or which opinions may be preferred by the Tribunal at a hearing of the substantive application.
This notwithstanding, some analysis of the available materials and the relative merits of the substantive application is required in order to reasonably assess if, without testing, at their highest, there are materials sufficient to make out the particular case, subject of the dismissal action. Clearly enough, materials that raise fanciful, illogical, extreme, unsupported or unreasonable propositions in support of a case, incapable of tipping the balance of probabilities, may be found insufficient. These are matters of weight for the purposes of s 42B(1)(b). While these are matters about which reasonable minds may differ, reasonable satisfaction is required.
Where there is a conflict in the materials in respect of a real issue of fact or law under the statute applicable to the substantive application, it is not necessary to attempt to resolve it for the purposes of determining a dismissal application under s 42B(1)(b) of the AAT Act. For the purposes of a preliminary assessment, when pertinent materials have not properly been tested or witnesses examined, choosing between such materials on the basis of preference or the apportionment of weight in respect of a substantive issue may not be appropriate. The assessment to be made in the context of dismissal action is whether the materials are capable of resolving the particular issue in favour of the party resisting dismissal.
Similar considerations arise where medical opinions diverge in the materials for preliminary assessment. To my mind, the question of sufficiency does not involve choosing between experts and doctors who have written reports – if there are reasonable medical opinions by appropriately qualified doctors capable of proving key elements of the particular case that may be sufficient, even in the presence of equally reasonable contrary or different opinions.
The time for detailed examination of evidence to resolve real issues of fact in the substantive application, where one piece of evidence may be preferred over another, where weight to be given may be assessed on all the usual grounds that arise, where opinions may be tested and conflicts resolved, is at hearing of the substantive application. The present task involves a preliminary assessment of the available materials to determine if a case has no reasonable prospect of success; if so, then the discretion for summary dismissal is enlivened.
And this is the third point: if the Tribunal is satisfied the particular case has no reasonable prospect of success, only then is the discretion to dismiss the application enlivened. It does not follow (and it should not be assumed) in all cases that, once enlivened, the discretion will or must be exercised. It is for the Tribunal to decide if exercise of the discretion is the most appropriate course, having regard to the relevant circumstances.
Thus, in order to decide if Ms Barthel’s case has no reasonable prospect of success and should be dismissed, it is necessary to –
(a)identify the kernel of issues on which the substantive application turns;
(b)consider the extent to which, if at all, there are probative materials addressing each issue;
(c)assess whether those materials raise no reasonable prospect of Ms Barthel’s substantial application succeeding; and
(d)determine if it is appropriate to dismiss her application in all the relevant circumstances.
Substantive application issues
The issues at the heart of Ms Barthel’s application are whether her carpal tunnel syndrome injury resolved by 11 February 2016 to the extent that Comcare is not liable to pay her compensation for medical treatment expenses under s 16 of the SRC Act, and compensation for incapacity for work under s 19 (and related sections) of that Act as of 11 February 2016. The kernel of these issues is in two parts –
(a)did Ms Barthel’s carpal tunnel syndrome injury resolve on or before 11 February 2016? and
(b)does her previous employment significantly contribute to cause her bilateral forearm, wrist and hand symptoms thereafter, such that compensation may be payable in respect of medical treatment expense and incapacity for work?
Are there probative materials addressing each issue?
Ms Barthel relies on brief reports by Dr Mescherling (orthopaedic and hand surgeon), Dr Lutze (neurosurgeon), Dr Horaczek (neurosurgeon), Dr Thomas (orthopaedic surgeon), Dr Haag (neurologist) and Dr Dogan (orthopaedic surgeon). Each of these doctors examined Ms Barthel.
On 15 March 2016, Dr Lutze reported “ein diskretes Carpaltunnelsyndrom rechts und ein leichtes Carpaltunnelsyndrom links”.
On 9 September 2016, Dr Horaczek reported “minimal medial nerve delay suggestive of slight residual carpal tunnel syndromes in both hands”.
On 12 April 2017, Dr Horaczek reported “Neurographic findings suggest a discrete carpal tunnel syndrome on the righthand side and a slight carpal tunnel syndrome on the left hand side”.
These untested materials, if accepted, are sufficient to establish that Ms Barthel’s carpal tunnel syndrome did not completely resolve with surgical treatment. Dr Horaczek’s use of the word ‘residual’ infers a continuity of carpal tunnel syndrome symptoms, albeit in reduced form perhaps, from the compensable carpal tunnel syndrome treated by Dr Mescherling for which Comcare accepted liability as an injury.
The results of nerve conduction studies reported by Dr Horaczek on 15 March 2016 and 12 April 2017, after Dr Mescherling’s surgical intervention in January and March 2015, lend support to this assessment when compared with those reported by Dr Andrews (a neurologist) on 2 October 2014 that confirmed Ms Barthel’s carpal tunnel syndrome diagnosis, for which Comcare (then the relevant insurer) accepted liability as an injury.
The ANU relies on reports by Associate Professor Boyce and Dr McGlynn, to which I have referred above. Both doctors report surgical resolution of Ms Barthel’s bilateral carpal tunnel syndrome and report that her subsequent forearm symptoms have not been diagnosed and, in all likelihood, are not related to her previous employment.
Dr Lutze, Dr Horaczek, Dr Dogan, Dr Thomas, Associate Professor Boyce and Dr McGlynn each refer to further treatment options and Dr Lutze, Dr Horaczek, Associate Professor Boyce and Dr McGlynn address Ms Barthel’s incapacity for work.
That being so, I am satisfied that there are probative materials addressing each of the substantive issues.
Prospect of success
It is on the basis of the reports of Associate Professor Boyce and Dr McGlynn, in substantial part at least, that the ANU says Ms Barthel has no reasonable prospect of succeeding in her application.
The ANU argues that the opinions of Associate Professor Boyce and Dr McGlynn should be preferred and given more weight that the opinions of Dr Lutze, Dr Horaczek, Dr Thomas, Dr Haag and Dr Dogan. That I am not prepared to do.
As I have said, to my mind, it is not necessary or even appropriate to prefer one doctor’s report over another in order to determine if Ms Barthel’s case has no reasonable prospect of success. Engaging in an assessment of that kind and expressing preferences or apportioning weight in a contest of medical opinions without hearing the application would be premature and probably misguided when determining the ANU’s application for dismissal. There are several reasons for this in the particular circumstances of this case.
There are considerations of weight that are best reserved for hearing. For example, the opinions expressed by Associate Professor Boyce and Dr McGlynn are drawn from assessments made on the papers - neither expert examined Ms Barthel, who now resides in Germany. Furthermore, the reports of Dr Horaczek, Dr Thomas and Dr Dolan were not provided to Associate Professor Boyce. The extent to which, if at all, these considerations affect the weight to be given is a matter to be determined once all the evidence has been properly examined and tested at hearing. I am not going to engage in speculation about the relative weight that might be given to the evidence of these doctors.
There are matters of detail and reasoning that may go to the probative value of the medical reports before the Tribunal and which medical opinions or assessments should be preferred. For example, it is quite clear that there is a divergence of medical opinion between Dr Horaczek and Dr Thomas (and perhaps Dr Dolan and Dr Lutze), on the one hand, and Dr McGlynn and Associate Professor Boyce, on the other hand. The reasoning underlying the opinions expressed by each of these doctors is somewhat opaque or not fully expressed. Those are matters to be examined and tested at substantive hearing.
I am satisfied that the available evidence, particularly the reports of Dr Lutze, Dr Horaczek, Dr Thomas and Dr Dogan, if accepted, may be sufficient to establish Ms Barthel’s substantive case, although I make no final assessment of the merits of her case, which, properly, is a matter for substantive hearing.
Nevertheless, from this it follows that her case has some reasonable prospect of success and the proposition that it has no reasonable prospect of success cannot be accepted.
That being so, for the purposes of s 42B(1)(b) of the AAT Act, the discretion to dismiss Ms Barthel’s substantive application is not enlivened.
Further matters
There are two further matters to address.
Firstly, the ANU argued that Ms Barthel’s case has no reasonable prospect of success as she is not intending to call any medical witness to give oral evidence, whereas the ANU relies on expert evidence from two doctors and it intends calling Dr McGlynn to give oral evidence.
There are two flaws in this argument.
It should not be assumed that oral evidence of an expert doctor who has not examined Ms Barthel will be given greater weight at a hearing than documentary reports from specialist doctors with relevant qualifications who have examined her. As I have said, it is not appropriate to speculate about such matters, which are best left for the substantive hearing.
In the particular circumstances of this case, I understand that difficulties were encountered contacting Associate Professor Boyce when making arrangements for the hearing, and the decision was taken to brief another expert, Dr McGlynn. As I have said, Associate Professor Boyce was not briefed with all relevant reports from Doctors who examined and investigated Ms Barthel’s post-surgical bilateral arm and hand symptoms. I make no comment about this other than to observe that issues of weight may arise. Ms Barthel has obtained brief reports and opinions from five doctors who have examined her and assessed or treated her bilateral upper limb condition since 2015. It should not be assumed that Associate Professor Boyce’s expertise and opinions will be preferred at hearing.
Secondly, the expertise, records, diagnoses and opinions of Dr Mitzscherling, Dr Lutze, Dr Horaczek, Dr Thomas and Dr Dogan are relevant to the matters before the Tribunal in these proceedings. Ms Barthel has stated that she cannot afford to pay for any of these doctors to give oral evidence at a hearing. It may be, as the ANU asserts, that failing to call any of these doctors to give oral evidence might lessen her prospects of succeeding in her application. That is a matter for Ms Barthel.
Nonetheless, in consideration of the ANU’s submissions regarding medical evidence, and bearing in mind the obligation on the ANU to assist the Tribunal, one might expect medical records, at least, and perhaps detailed medical reports addressing relevant questions, could have been sought from Dr Lutze, Dr Horaczek, Dr Mitzscherling, Dr Thomas and Dr Dogan. But this has not occurred. Of course, even though proceedings before the Tribunal are not adversarial, it is for the ANU to determine how best to present its case; just as it is for Ms Barthel.
Decision
The application for dismissal under s 42B(1)(b) of the AAT Act is refused.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
……………………………………………………
Associate
Dated: 26 March 2019
Date of Hearing: 20 March 2019
Applicant: Self-Represented
Counsel for the Respondent: Ms Kristy Katavic
Solicitor for the Respondent: Ms Carmen King, McInnes Wilson Lawyers
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