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 seeking access, dated 21 December 2018, and Mr Dean submitted a note in reply dated 22 December 2018. This decision draws on the written submissions, the submissions made orally at the interlocutory hearing, the documents already available to the tribunal (including the “T-documents” provided under section 37 of the AAT Act and documents assembled by Comcare under section 71 of the SRC Act), the applicant’s witness statement (provided 3 December 2018) and the documents returned under summons.
ISSUES
The only issue before the tribunal at this time is whether Comcare should have access to the documents returned under summons to which Mr Dean has raised objections.
The grant or denial of access is based largely on whether the documents in question (the contested documents) are relevant to the issues in the decision under review. At this stage of the review process, when the parties are still gathering information in order to determine the parameters of the case each will put before the tribunal, it is difficult to be categorical about what will and will not be relevant. The decision under review is a decision that Comcare has no present liability for medical expenses, incapacity payments or household and care services. That establishes a basic scope for the review, but a number of paths remain open to the parties by which they may seek to construct a case. Mr Dean, who is self-represented, has not put an outline of the issues that he expects to be resolved by the review. Comcare, however, has outlined the issues it sees as needing resolution, in a document filed on 30 July 2018:
·the correct diagnosis of Mr Dean’s condition;
·whether the condition was significantly contributed to by Mr Dean’s employment; and
·whether he is entitled to compensation.
At the hearing Mr Ponna for Comcare raised the possibility that the diagnosis of Mr Dean’s condition might extend to a chronic pain syndrome. Comcare proposes to have Mr Dean examined by an appropriate medical expert. Mr Ponna submitted that a broader medical history would need to be put to the expert to take into account the range of possible diagnostic outcomes. It would clearly be premature for me to identify in any final way the issues to be decided in the review, given the somewhat embryonic stage of its progress towards a hearing. Nevertheless, the inclusion by Comcare of issues related to the correct diagnosis of Mr Dean’s condition implies that a range of medical possibilities may need to be investigated and suggests that it may be appropriate to allow inspection of a broader rather than narrower range of materials at this stage of the process.
THE CONTESTED DOCUMENTS
Several summonses were issued by Comcare, and only in some cases did Mr Dean object to access. On 24 October 2018 Mr Dean objected to Comcare having access to documents returned under the following summonses:
·to Tuggeranong Square Medical Practice (sealed 6 August 2018, returned 17 August 2018);
·to Calvary Hospital (sealed 6 August 2018, returned 22 August 2018);
·to the Department of Human Services (sealed 6 August 2018, returned 23 August 2018); and
·to ACT Health (sealed 6 August 2018, returned 30 August 2018).
In two separate messages, both dated 14 December 2018, Mr Dean objected to Comcare being granted access to specified documents returned under summons by I-MED Radiology (sealed 9 November 2018, returned 26 November 2018).
Mr Dean did not object to Comcare having access to documents returned under a number of other summonses, or to some of the documents returned by I-MED Radiology. Where Mr Dean has objected he has based his objection that the contested document would not assist the tribunal because the document is not related to the compensable injury. In some cases he has also objected on the grounds that Comcare already has the document.
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.
In ZFCC and Comcare [2018] AATA 1358 (ZFCC) DP Humphries pointed to additional considerations that militate against the exclusion of medical evidence, in particular. It needs to be kept in mind, for example, that medical records are often in an abbreviated and technical form the meaning of which is unlikely to be apparent to a decision-maker who is not medically trained; that the connections between a symptom or observation and a medical condition may not always be obvious to someone other than a doctor; and that a complete medical record may in any case sometimes be relevant to an applicant’s credit (at [13]-[16], in part applying Maganga [26]-[29]).
A decision giving access to documents must always balance considerations of the public interest in the administration of justice against other considerations, especially those going to the privacy of the applicant. It is privacy that appears to be the major reason behind Mr Dean’s objections: he notes that his injury is confined to one part of the musculo-skeletal system and contends that there is no need for Comcare to have access to information about other unrelated medical conditions from which he has suffered or on which he has sought medical help.
From the privacy point of view, it should be noted that at this stage of the proceedings the circle of those to whom the material is released is narrow, and the use of the material at later stages of the proceedings – for example in the hearing itself – can always be subject to further challenge. And as DP Humphries pointed out in ZFCC, an applicant who wishes to have a matter determined in the tribunal has already made a decision to sacrifice some degree of privacy in the pursuit of that goal. It seems likely that some of the records in the contested documents will already appear in Comcare’s records, as Mr Dean asserts. Whether that is so in any given instance can only be decided through inspection, and no harm to Mr Dean’s interests, including his privacy, can come from inspection of documents Comcare already has in its possession. Further, in part Mr Dean appears to be driven by a concern that those who gain access to his records – and in particular Comcare – might use them for collateral or ulterior purposes. I cannot see any sensible basis for that view: like other agencies, Comcare operates under strict controls over the confidentiality of the information that it uses, and any information that goes unutilised in the hearing process should accordingly be afforded proper protection.
Comcare has identified the possibility that Mr Dean may be diagnosed with a chronic pain syndrome. It is open to Comcare to question whether an applicant, some years after initial acceptance of liability, is still suffering from the original condition for which liability was accepted. On the other hand, that possibility does not, of itself, entitle Comcare to go on a fishing expedition searching for material that it can put to some use to build a case that would otherwise not be available to it.
Comcare submitted that the documents were potentially relevant in that they might contribute to determining a diagnosis of Mr Dean’s condition; that they might throw light on whether Mr Dean suffers from an underlying chronic condition such as osteoarthritis; and they might provide evidence regarding incidents that could break the causal chain between the original accepted condition and the current symptomatology. Further, in a note of 21 December 2018, Comcare argues that references in Mr Dean’s statement of 3 December 2018 to incidents and symptoms outside his accepted condition necessarily implies that Comcare should have access to the medical records relevant to those incidents and symptoms.
For his part, Mr Dean contended that access should be limited to material that related directly to his arm and wrist; that a number of other incidents from the past few years, involving other injuries, or aggravations of his compensable condition, were already known to Comcare, who had all relevant records about them; and that it was readily possible to distinguish and separate the relevant records from those of no forensic value in the present matter.
I have inspected the following contested documents.
(a)Department of Human Services has returned Medicare records of medical consultations and prescriptions;
(b)Calvary Hospital returned records relating to a colonoscopy performed in 2009;
(c)ACT Health returned extensive records dating back to at least 1991, including various pathology records, and records relating to hospital admissions for chest pain issues, treatment of a leg wound sustained while travelling in Asia, and a colonoscopy;
(d)Tuggeranong Square Medical Practice, which evidently is the general practice attended by Mr Dean, returned a large bundle of medical records, comprising a patient history and clinical notes covering the period June 2000 - August 2018, a list of pathology and other investigations from late 1999 to August 2018, reports from specialists and other health professionals to whom Mr Dean has been referred, correspondence with Comcare, and medical certificates;
(e)I-MED Radiology returned reports of imaging of the right wrist and forearm; of the kidneys; of the blood vessels of the leg; of the thorax; of the abdomen; of the skull; of the left arm; of the stomach and duodenum; of the left foot; of the lumbosacral and cervical spine; the images themselves were also provided (on disc).
The possibility that Mr Dean has developed a chronic pain syndrome in his right arm would encourage access to a wider range of medical materials by Comcare’s expert. Mr Dean’s general practitioner, Dr Paul Hughes, raised the hypothesis in a report dated 23 April 2013 (T55, folios 151-2). Chronic pain syndrome means that the usual correlation between pain and objectively observable medical evidence (such as scans or range of motion results) is absent. That clearly raises the possibility that other documents from a medical history could be useful to a diagnostician, either to confirm a diagnosis or to rule it out. It is difficult, then, to conclude that material that would not appear on the surface to relate to an injury to the forearm and wrist can have no bearing on Mr Dean’s case.
The records from Tuggeranong Square medical practice, in particular, disclose a complex medical history. From the clinical notes in particular, but also from the assembly of prescription history and specialist reports, it is not possible to exclude the possibility that a specialist could make connections that are not apparent to a lay decision-maker. Providing a complete medical record to an expert for the limited purposes of a medico-legal report will have a minor impact on Mr Dean’s privacy and may well provide the expert with insights that would otherwise not be available. The clinical notes, in particular, provide a picture of Mr Dean’s health status, visit by visit, that may well be illuminating to a specialist in the light of symptoms that appear in proximity to one another in those notes.
I might add that, as noted earlier, Comcare is entitled to explore alternative theories of Mr Dean’s condition; that the chronic pain syndrome possibility was raised by Mr Dean’s doctor; and that by bringing his matter to the tribunal Mr Dean has implicitly accepted some loss of privacy in order to have his matter determined. Further, having sought review by the tribunal, Mr Dean has by implication accepted that the only reason for excluding access by Comcare to his medical records is because the particular record is not relevant; as I have pointed out, the possibility of a different diagnosis broadens the scope of materials that Comcare can legitimately pursue.
The suggestion that Mr Dean does not suffer from the condition for which he has been compensated, but rather from an underlying osteoarthritis which becomes symptomatic with prolonged use, is put forward in the report of Comcare’s medical expert, Dr Tony Kostos (T82, folios 210-215). That hypothesis also suggests a broader reach for the medical evidence, in that the appearance of osteoarthritis in one part of the body might be reflected in its appearance elsewhere. Finally, the chain of causality argument suggests once again that a wide range of medical issues might come into play either to support or negate such a thesis.
Mr Dean’s position, and his insistence that the only relevant medical records are those relating directly to his wrist and arm, are at odds with these competing theories of the case. The limited access his theory of the case supports cannot be sustained in light of those competing theories, not because his theory is necessarily wrong but because at this stage Comcare is entitled to explore its competing theories. That is especially so as they are lent support by the available expert medical opinion. While Comcare is still assembling its case it should not be denied access to evidence that could assist by allowing alternative theories to be tested.
At an earlier time in the history of the accepted condition (in matter 2013/5412), a summons was issued to Tuggeranong Square Medical Practice and also on that occasion Mr Dean objected to Comcare having access to some of the records. On that occasion a confidentiality order under section 35 of the AAT Act was issued allowing access only to a redacted form of a significant number of documents. It goes without saying that the decision made on that earlier occasion, in the context of a different review, with a different scope, relating to a different range of documents (although some of the documents will be the same, not all will be) and made by a different member, can have no bearing on the decision now before me.

For the purposes of completeness I should mention that in addition to the documents referred to above returned by ACT Health, a second envelope of material, containing a single record, was returned under (it appears) the same summons, but on 22 August 2018 rather than 30 August 2018. Mr Dean has not objected to Comcare having access to that record, but it is not clear to me that the second envelope’s existence was brought to his attention. I therefore have held back from dealing with that envelope.
Taking all of the above into consideration, I do not see that any purpose would be served by denying access to any of Mr Dean’s medical records returned under the summonses set out at paragraph 20 above. Although the records go well beyond the ambit of Mr Dean’s compensable condition, the alternative theories of the case put forward by Comcare warrant a much broader look and I cannot see a sound basis for the exclusion of any of the medical evidence, or that any injury will be occasioned by allowing Comcare to have access to all the documents returned under summons. Access is granted to all the documents returned under the summonses set out in paragraph 21 of this decision.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
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Associate
Dated: 7 February 2019
Date last submissions received: 22 December 2018
Applicant: Self-Represented
Solicitor for the Respondent: Mr Aasish Ponna, Australian Government Solicitor