Dong and Comcare (Compensation) - [2023] AATA 4206

Dong and Comcare (Compensation) [2023] AATA 4206 (20 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5175
Re:Ai Ngoc Thi Dong
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:20 December 2023
Place:Canberra

Objections not upheld.

………………………………………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – psychological injury compensation claim – summons –treatment records – objection to inspection – relevant principles – obligation to ensure each party is given a reasonable opportunity to present their case – apparent relevance to statutory questions – legitimate forensic purpose – objections not upheld
Legislation
Administrative Appeals Tribunal Act 1975 ss 33, 35, 39, 40A, 40B
The Health Records Act (Privacy and Access) 1997 (ACT) s 6
Privacy Act 1988 Schedule 1—Australian Privacy Principles
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
Hearne v Street [2008] HCA 36
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Martinovic v Australian Capital Territory [2021] AATA 3435
Power v Comcare [2015] FCA 1502
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
REASONS FOR DECISION
Mr S. Webb, Member
20 December 2023

Ai Ngoc Thi Dong claimed compensation for an alleged injury in her employment by the Department of Defence. Comcare decided to refuse the claim. This decision was affirmed on reconsideration. Ms Dong applied for review by the Tribunal.
In the course of the resulting proceedings, Comcare requested the Tribunal summons records from the Kambah Medical Centre (Kambah MC) and Gateway Home Psychology (Gateway).
On 13 October 2023, the Tribunal granted leave for Ms Dong to inspect documents produced by Kambah MC and for Comcare to inspect the documents thereafter, subject to objection.
On 27 October 2023, the Tribunal granted leave for Ms Dong to inspect documents produced by Gateway and for Comcare to inspect the documents thereafter, subject to objection.
In each case, Ms Dong objected to Comcare being granted leave to inspect parts of the documents produced. It is Ms Dong’s objection which is the subject of this interlocutory decision.
The objection
On 26 October 2023, Ms Dong lodged the following objection in respect of Comcare inspecting documents produced by Kambah MC:
1. Page 23/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
2. Page 24/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
3. Page 25/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
4. Page 27/193, please omit the underlined and bolded section as it relates to my
privacy.
…
5. Page 28/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members and myself.
…
6. Page 30/193, please omit the underlined and bolded section as it relates to the
privacy of my family members.
…
7. Page 33/193, please omit the underlined…

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 Dong and Comcare (Compensation)

Details

AGLC: Dong and Comcare (Compensation) [2023] AATA 4206
Case: [2023] AATA 4206
Decision Date: 20 December 2023

CaseChat Overview and Summary

This matter concerned an objection by Ms. Dong to the inspection of her treatment records by Comcare in relation to her psychological injury compensation claim. The dispute was heard by Mr. S. Webb, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Ms. Dong's objections to Comcare inspecting her treatment records should be upheld, considering the sensitive and private nature of the information contained within them, and the obligation to ensure a fair opportunity for each party to present their case. The central legal issue was the balance between an individual's right to privacy regarding their medical and psychological records and the need for relevant information to be available for the proper determination of a statutory compensation claim.

The Member reasoned that while the privacy concerns surrounding psychological treatment records are understandable, objections based solely on privacy grounds cannot be upheld if the information is of apparent relevance to the issues before the Tribunal. Ms. Dong's claim was to be decided under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), specifically concerning the definition of "disease" in section 5B. This definition allows for consideration of factors such as predispositions to ailments and other matters affecting an employee's health, including those unrelated to employment. The Member noted that information which may seem subjectively irrelevant, such as past trauma or family member health, could objectively be relevant to understanding the causes or exacerbation of a claimed psychological injury or the employee's susceptibility to such conditions.

The Tribunal's interlocutory decision was that the objections were not upheld. Ms. Dong was advised that she could seek orders under section 35 of the *Administrative Appeals Tribunal Act 1975* to prevent wider disclosure or publication of the information if she wished.

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

With regard to the privacy issues Ms Dong has raised in respect of her private information and the private information of or about family members, it is open for her to seek orders under s 35 of the AAT Act to prevent wider disclosure or publication of the information she objects to Comcare inspecting. Should such an application be made, it will be decided on the merits.Interlocutory decision Objections not upheld.

Ratio Decidendi

Legal Principle Established

No doubt, medical and psychological treatment records contain private and sensitive information about the person’s experiences, symptoms, and treatments, as well as information about family members. The motivation to protect such records from disclosure to an employer or to an insurer can readily be understood as exposure of such private information may be potentially damaging, compromising or embarrassing to the person or to any family members. But an objection raised on such grounds may not be upheld if the information or the document is at least of apparent relevance to the issues the Tribunal must decide. Consideration Ms Dong’s claim must be decided under the injury provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Under s 14, her entitlement to compensation turns on the existence of an injury as defined in s 5A which results in impairment or incapacity for work for which Comcare is liable. In the circumstances of her claim, the kind of injury alleged arises under the definition of disease set out in s 5B:(1) In this Act:disease means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material. As can be seen, any predisposition or other matters affecting Ms Dong’s health, including her psychological health, may be taken into account. The word ‘may’ in this context has been understood as directive, such that the Tribunal shall take such matters into account.[8][8] Power v Comcare [2015] FCA 1502 at [94]. Ms Dong should expect her compensation claim to be thoroughly investigated and decided on the basis of relevant information. The relevance of the controversial information in the clinical notes produced by Kambah MC and Gateway may not be apparent when viewed subjectively, without the benefit of legal or expert medical opinion. For example, while information relating to past trauma may be deeply private and subjectively not relevant to Ms Dong’s claim, when viewed objectively the information may shed light on factors which contributed to the claimed injury, including the onset of related psychological symptoms, or Ms Dong’s susceptibility to such symptoms, years later. Similarly, information about the health or behaviour of an immediate family member might not subjectively appear to be relevant but, when viewed objectively in reference to the statutory questions raised by Ms Dong’s claim, the information might illuminate factors which contributed to Ms Dong’s state of mind and the onset of symptoms of the psychological ailment for which she has claimed compensation.