Crosby and Comcare (Compensation)

Case [2023] AATA 4139

Crosby and Comcare (Compensation) [2023] AATA 4139 (15 December 2023)

Division:GENERAL DIVISION

File Number(s):     2023/2581, 2023/6641

Re:Raphaella Crosby  

APPLICANT

ComcareAnd  

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Mr S. Webb, Member

Date:15 December 2023

Place:Canberra

  1. Dr Crosby’s objection to the summons in respect of the Prince of Wales Hospital is upheld and the summons is vacated.

  2. Dr Crosby’s objection to the summons in respect of the Royal Hospital for Women is upheld and the summons is vacated.

  3. Dr Crosby’s objections to summons in respect of the following entities are not upheld:

    (a)188 Medical;

    (b)561 Medical Practice;

    (c)Bondi Doctors;

    (d)Dr Arman Sabet;

    (e)Mr Rao Kolli;

    (f)East Neurology;

    (g)Faulkner Street Medical Practice;

    (h)Helensvale Plaza Medical Centre;

    (i)Park Family Practice;

    (j)Royal Prince Alfred Hospital;

    (k)St Vincent’s Clinic;

    (l)Strive Health and Physiotherapy; and

    (m)Westmead Hospital.

    ……………………………………………

    Mr S. Webb, Member

    Catchwords

    PRACTICE AND PROCEDURE – compensation for injury – psychological and physical ailments – aggravation – application for review – requests to summons medical records – objections to summons – relevant principles - right to privacy – apparent relevance – legitimate forensic purpose – objections upheld in part

    Legislation

    Administrative Appeals Tribunal Act 1975 ss 2A, 35, 37, 39, 40A, 40B

    Health Records and Information Privacy Act (NSW) 2002 ss 5, 13

    Privacy Act 1988, Schedule 1, Part 3, ss 6.1, 6.2

    Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14

    Cases

    Comcare v Maganga [2008] FCA 285

    BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906

    Hunt v Wark (1985) 40 SASR 489

    Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35

    Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470

    Montenegro v Legal Profession Admission Board [2022] NSWSC 1100

    Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

    Rhinehart v Rhinehart [2018] NSWSC 1102

    Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

    South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR

    Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248

    Wong v Sklavos [2014] FCAFC 120

    ZFCC and Comcare [2018] AATA 1358

    REASONS FOR DECISION

    Mr S. Webb, Member

    15 December 2023

  4. Dr Raphaella Crosby claimed compensation in respect of alleged injuries in employment by the Australian Pesticides and Veterinary Medicines Authority (Employer). Comcare decided by primary determinations and on reconsideration to refuse Dr Crosby’s compensation claim. Dr Crosby applied for review of these decisions by the Tribunal.

  5. There are two applications for review in the Tribunal: application 2023/2581 in respect of decisions declining liability for aggravation of Generalised Anxiety Disorder; and application 2023/6641 in respect of decisions declining liability for aggravation of Migraine. In each application, documents have been lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents). For clarity, I will refer to the T documents in application 2023/6641 as ‘BT documents’.

  6. In the course of the proceedings, Comcare requested the…

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Details
AGLC
Crosby and Comcare (Compensation) [2023] AATA 4139
Case
[2023] AATA 4139
Decision Date

CaseChat Overview and Summary

This decision concerned objections raised by Dr Crosby regarding Comcare's requests to summons medical records as part of her compensation claim. Dr Crosby had lodged a claim for psychological and physical ailments, including anxiety and migraine, alleging these were exacerbated by workplace bullying and stress. Comcare had issued determinations declining the claim, which Dr Crosby sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether Comcare's requests to summons medical records from various entities were sufficiently relevant and for a legitimate forensic purpose, despite Dr Crosby's objections based on privacy and the apparent timing of some attendances. The Tribunal was required to balance the right to privacy against the need for relevant evidence to determine the substantive issues of Dr Crosby's claim, specifically concerning the nature of her conditions, their aggravation, and any resulting impairment or incapacity to work.

The Member, Mr S. Webb, reasoned that the apparent relevance of the requested records should be assessed in light of the substantive issues before the Tribunal. While acknowledging Dr Crosby's privacy concerns, the Member found that the information provided by Comcare regarding Dr Crosby's medical attendances established a reasonable basis to conclude that the records held by the majority of the entities were likely to be of apparent or adjectival relevance to her claim. This included records predating the alleged injury, as they might shed light on the history and progression of her psychological and migraine ailments and related symptomatology. The Member also noted that Dr Crosby had not applied for confidentiality orders.

Ultimately, Dr Crosby's objections to the summons in respect of the Prince of Wales Hospital and the Royal Hospital for Women were upheld, and those summonses were vacated. However, her objections were not upheld in relation to the other thirteen entities, meaning the summonses for those entities would proceed.

Orders

Orders of the court

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Background

Background to the litigation

It is Dr Crosby’s objections which are the subject of this interlocutory decision, alone.Background and procedural facts On 19 December 2022, Dr Crosby lodged a compensation claim.[1] The claim included the following information:[1] T5.What is the condition that you are claiming for?Stress/workplace bullying caused exacerbation of my anxiety and migraineAre you claiming for a psychological injury?Yes – I am claiming for a psychological injuryIf claiming for a physical injury or disease, which parts of your body are affected?Legs, brainWhat tasks were you doing when you were injured?Normal office work dutiesWhat happened and how were you injured?workplace [sic] bullying and stress caused exacerbation of anxiety and migraine (believed that migraine may be cause of leg/coordination issues)When did you first notice your symptoms/injury?[2] T5, folio 22.17/10/2022 4:00 PM [2] Dr Crosby set out the following timeline of alleged events:20/6/2022 Started at APVMA19/8/2022 Attended meeting while sick15/9/2022 Targeted bullying began17/10/2022 Yelled at in meeting, experienced significant anxiety/depression event21/10/2022 Banned from talking to colleagues22/10/2022 Began having issues with my legs and coordination11/11/2022 made aware of cyberstalking, raised harassment complaint with HRand made union aware29/11/2022 lodged formal complaint with HR (provided)1/12/2022 saw Dr Enoch Chan re neurological issues and lack of coordination5/12/2022 performance meeting with 3 hours notice13/12/2022 performance meeting to discuss probation called with 90 minutesnotice, canceled [sic] when supervisor refused to reschedule so a union delegatecould attend; given draft probation report recommending my dismissal and givenuntil 2pm Thursday to respond (provided)15/2/2022 mental breakdown, consulted Dr Salma Ali who gave me a week offand put safety plan in place16/12/2022 called by HR director to advise of termination effective immediately[3][3] T6, folio 27. On 3 February 2023, the Employer provided a response to the claim, disputing the events Dr Crosby alleged and setting out relevant allegedly factual matters.[4] [4] T12. On 20 February 2023, Comcare issued a primary determination declining Dr Crosby’s claim in respect of aggravation of Generalised Anxiety Disorder.[5] Comcare was satisfied Dr Crosby’s employment significantly contributed to aggravation of Generalised Anxiety Disorder but concluded this was not an injury, as it was the result of reasonable administrative action undertaken in a reasonable manner in respect of her employment. Dr Crosby requested reconsideration of the determination.[5] T16. On 23 March 2023, Comcare issued a reconsideration decision affirming the determination.[6] On 20 April 2023, Dr Crosby lodged an application for review of this reconsideration decision by the Tribunal.[6] T1.1. On 18 April 2023, Comcare issued a determination declining liability for aggravation of Migraine.[7] The decision-maker was not satisfied Dr Crosby’s employment significantly contributed to aggravation of Migraine. Dr Crosby requested reconsideration of this determination.[7] BT4.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Secondly, Dr Crosby has not applied for confidentiality orders under s 35(3) or (4) of the AAT Act in respect of her identity or any of the summonsed documents. Should she do so, her application will be assessed on its merits.Decision Dr Crosby’s objection to the summons in respect of the Prince of Wales Hospital is upheld and the summons is vacated. Dr Crosby’s objection to the summons in respect of the Royal Hospital for Women is upheld and the summons is vacated. Otherwise, Dr Crosby’s objections are not upheld in respect of:(a)188 Medical;(b)561 Medical Practice;(c)Bondi Doctors;(d)Dr Arman Sabet;(e)Mr Rao Kolli;(f)East Neurology;(g)Faulkner Street Medical Practice;(h)Helensvale Plaza Medical Centre;(i)Park Family Practice;(j)Royal Prince Alfred Hospital;(k)St Vincent’s Clinic;(l)Strive Health and Physiotherapy; and(m)Westmead Hospital.

Ratio Decidendi

Legal Principle Established

At this stage of the proceedings, in which each party is given a reasonable opportunity to prepare their case, the apparent relevance of Comcare’s requests to summons records must be viewed through the lens of the three substantive issues the Tribunal must determine. Consideration of the requests The basis on which Comcare requests for the Tribunal to summons records from the 13 entities set out in paragraph 17 (excluding the Prince of Wales Hospital and the Royal Hospital for Women) includes the Medicare and Pharmaceutical Benefit Scheme records in Annexure A and the attendances set out in Annexure B of the Respondent’s Submissions in Relation to Summons (Annexures). For privacy reasons, I will not set out the contents of either Annexure in these reasons. The accuracy of the information in the Annexures has not been tested or seriously challenged by Dr Crosby. It is not necessary to go further to test the reliability of the information for present purposes. I am prepared to accept the information is substantially accurate and I will proceed on that basis. In consideration of the information in respect of Dr Crosby’s medical practice attendances set out in Annexure B, there is a reasonable basis to conclude each of the 13 entities may hold records of apparent or adjectival relevance to the substantive issues raised by her claim for compensation. Dr Crosby argues her attendance at the East Maitland Family Medical Centre on two occasions in 2023, well after the claimed injury on or about 17 October 2022, cannot be of relevance. This is not correct. It appears she attended that practice on 18 and 27 May 2023, seven months after the claimed injury and five months after the alleged mental breakdown Dr Crosby referred to in the timeline she provided to Comcare in T6. I am satisfied there is a real possibility the records of these attendances might assist understanding of her medical conditions over the preceding months, within the ambit of her claim, and, in particular, might shed light on the questions of impairment and incapacity to work as a result of the claimed injury. In the case of the Faulkner Street Medical Practice, it appears likely Dr Crosby attended that practice over three periods from 1998 and, in 2022, a mental health plan was prepared for her. The more recent records are likely to shed light on matters of direct relevance to her claim, whereas the older records from 1998 may be of lesser relevance. Nevertheless, there remains a reasonable basis to conclude the older records are possibly relevant to matters the Tribunal must take into account under s 5B(2) of the SRC Act. Records of Dr Crosby’s three attendances at the 188 Medical practice in 2021 are likely to shed light on the treatment she obtained. There is a real possibility this will assist understanding the history and progress of her migraine ailment, which the Tribunal should take into account when applying the threshold in s 5B(1) of the SRC Act. I have reached similar conclusions in respect of Dr Crosby’s apparent attendances at the Helensvale Plaza Medical Centre in 2020 and 2021, her attendances at the Strive Health and Physiotherapy practice in 2019, her attendances at the Park Family Practice from 2012 to 2018, and her attendances at Bondi Doctors from 2012 to 2017. In each of these cases, her attendances appear to have related to her psychological and migraine ailments. Even though her attendances precede the alleged injury for which Dr Crosby has claimed compensation, I am satisfied there is a real possibility records of those attendances might shed light on the history of her psychological and migraine ailments and related symptomatology, and the contributory factors involved.