Dean and Comcare (Compensation) - [2019] AATA 99

Dean and Comcare (Compensation) [2019] AATA 99 (7 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3266
Re:Alan Dean
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Mark Hyman
Date:7 February 2019
Place:Canberra

The applicant’s objection to the respondent’s access to the documents returned under summons as set out in these reasons is disallowed.
........................................................................
Member Mark Hyman
Catchwords
PRACTICE AND PROCEDURE – workers’ compensation – access to documents returned under summons – medical evidence - relevant principles – where diagnosis of the accepted injury is challenged by Comcare – privacy – objection to access to documents disallowed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 39, 40A, 40B
Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 29, 71
Cases
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Comcare v Maganga (2008) 101 ALD 68
Hunt v Wark (1985) 40 SASR 489
Kennedy and Comcare [2014] AATA 369
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Trade Practices Commission v Arnotts [1989] FCA 248
ZFCC and Comcare [2018] AATA 1358
REASONS FOR DECISION
Member Mark Hyman
7 February 2019

This matter is about whether the respondent, Comcare, should be granted access to medical reports and related information that concern the applicant, Mr Alan Dean. Mr Dean lodged a claim for compensation with Comcare in 2009, and Comcare accepted liability for synovitis and tenosynovitis (right), with a date of injury of 29 April 2009. On 13 February 2018 Comcare made a determination of no present liability as of that date for medical expenses, incapacity payments and household and attendant care services under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). That decision was affirmed in a reconsideration determination dated 20 April 2018. Mr Dean has applied to the tribunal for review of the reconsideration determination.
In the course of gathering information for the review by the tribunal, Comcare issued a number of summonses to Mr Dean’s present and former medical service providers under section 40A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). In accordance with the normal process, governed by section 40B of the AAT Act, Mr Dean had first access to the documents returned under summons. On inspection of the documents, Mr Dean raised objection to many of them being made available to Comcare. The substance of his objection is that the documents are not relevant to the matters that are before the tribunal for review.
Mr Dean’s objections and Comcare’s submissions in response were heard by telephone on 9 November 2018. Comcare’s representative, Australian Government Solicitor, also filed a written submission dated 8 November 2018. A further summons was issued at Comcare’s request on 9 November 2018 for return of documents from a further provider, with documents returned on 26 November 2018; Mr Dean also objected to Comcare being granted access to some of the documents returned under that later summons. Comcare submitted a further note…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dean and Comcare (Compensation)

Details

AGLC: Dean and Comcare (Compensation) [2019] AATA 99
Case: [2019] AATA 99
Decision Date: 7 February 2019

CaseChat Overview and Summary

This matter concerned an application by Comcare for access to the complete medical records of Mr Dean, a party to a workers' compensation proceeding before the Administrative Appeals Tribunal. Comcare sought these records on the basis that a broad range of medical material could be relevant to determining the diagnosis of Mr Dean's accepted injury, which Comcare was challenging. Mr Dean had objected to Comcare's access to these documents.

The Administrative Appeals Tribunal was required to determine whether Comcare should be allowed access to Mr Dean's complete medical records, despite privacy concerns, in circumstances where Comcare was challenging the diagnosis of an accepted injury. The central legal issue was the extent to which a party in a tribunal proceeding, particularly Comcare in a workers' compensation matter, could access the medical records of the other party when those records might be relevant to the dispute.

The Tribunal disallowed Comcare's objection to access, applying the principles established in cases such as *Comcare v Maganga*. The Tribunal affirmed that access to relevant material is crucial for procedural fairness, requiring that parties be given a reasonable opportunity to present their case. While the ultimate relevance of documents is for the Tribunal to decide, during the preparation stages, the net for potential relevance is cast broadly. The Tribunal held that a party seeking inspection of documents does not need to prove their relevance definitively, but rather that there is a real possibility they may assist in resolving the matters before the Tribunal. The Tribunal also noted that an applicant seeking review of a decision concerning their personal affairs must be prepared for matters relating to their health to be revealed, and that the threshold for material sought under summons is lower than that for material considered during the review process itself.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As explained above, Comcare is seeking access to Mr Dean’s complete medical records on the basis that a wide range of medical material could be relevant to the diagnosis of his condition.CONSIDERATION Access to relevant material is critical to procedural fairness in the tribunal. Subsection 39(1) of the AAT Act requires that the tribunal ensure that parties to a proceeding are given every reasonable opportunity to present their case. In particular, a party must be given the opportunity of inspecting documents to which the tribunal proposes to have regard in reaching a decision. The reach of that provision is clearly limited, however, to documents that are relevant to the review, as the tribunal will inevitably limit its attention to such documents. But while the parties are in the early stages of preparation for a matter, they are still putting their case together and identifying evidence that may be relevant; the net is appropriately cast broadly rather than narrowly and a party should not generally be denied access to material that may prove relevant. The leading case on access to summoned documents in the tribunal is Comcare v Maganga (2008) 101 ALD 68 (Maganga). In that case Bennett J noted that: ·a party seeking to inspect documents does not need to demonstrate that they exist (at [34]);·a party seeking to inspect documents does not need to show that they are relevant; rather, the basis for inspection of documents is that there is a real possibility that they may assist in resolving matters before the tribunal (at [37]); and·among the bases for allowing inspection is that the documents are apparently relevant, or on the subject matter of the proceedings, or might legitimately be used for cross-examination (at [38]). These and other relevant issues are also explored in Kennedy and Comcare [2014] AATA 369. Among the reasons cited there for a decision allowing inspection of documents in court proceedings are “there must be some reason to suppose that the documents sought will be capable of being used ...” (Hunt v Wark (1985) 40 SASR 489 at 493). Further, the documents could “reasonably be expected to throw light on [issues] in the principal proceedings” (Trade Practices Commission v Arnotts [1989] FCA 248 at [41]) and discovery is “for a legitimate forensic purpose” (at [42]). But a party is not allowed to use the summons power to trawl for documents on the off-chance that they may be useful (Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250). Similar issues were canvassed in Panagiotou and TNT Australia Pty Ltd [2011] AATA 565. In that decision DP Forgie enunciated very directly (at [24]-[26]) the principle that an applicant who applies for review of a decision dealing with their personal affairs must be prepared for matters relating to their health to be revealed. The decision as to what is relevant in a review is for the tribunal to determine, and the bar is set lower for material under summons than in the review process itself.