DVFW and Comcare (Compensation)

[2019] AATA 2366

DVFW and Comcare (Compensation) [2019] AATA 2366 (7 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3869, 2018/4369

Re:DVFW

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:7 June 2019

Date of written reasons:        5 August 2019

Place:Sydney

For the reasons given orally at the interlocutory hearing on 7 June 2019, the Tribunal decides that the Respondent and its delegates do not require a release from the implied undertaking in order to use the documents produced to the Tribunal under summons and included in the Supplementary T-Documents received 7 March 2019, ST1 to ST 33 inclusive, for the purpose of management of her claims in respect of her accepted condition, ‘aggravation of personality disorder’.

..................................[SGD]......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – release from implied undertaking in relation to summonsed documents – documents produced under summons for substantive proceedings – summonsed documents used by Respondent and delegates as part of claims management of accepted condition – documents not used for collateral purpose – summonsed documents not subject to implied undertaking - Tribunal is part of claims management process – release from implied undertaking not required

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Chin v Comcare [2017] AATA 634

LMFP v Comcare [2017] AATA 1512
Oliver v Comcare [2018] AATA 1964
Richmond v Comcare [2019] AATA 100

Warner v Comcare [2017] AATA 2709

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

5 August 2019

1. The Applicant, DVFW, has objected to Comcare, the Respondent, and its delegates, Department of Human Services (DHS), and Allianz, the insurer, from using material that was produced to the Tribunal under summons from several of her treating practitioners in connection with the management of her claim for the condition, ‘aggravation of personality disorder’ for which liability has been accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) (the accepted condition).

2. She currently has two proceedings before the Tribunal relating to the accepted condition.  In proceedings 2018/3869 DVFW seeks the review of a decision to deny compensation for a medication, phentermine. In the other proceedings (2018/4639) DVFW seeks review of a decision that calculated her normal weekly earnings (NWE) by reference to four days of work per week. 

3. The issue to be decided is whether Comcare, DHS and Allianz, are subject to an implied undertaking not to use the documents produced to the Tribunal under summons, for a collateral purpose, and, if so, whether they should be released from that undertaking. 

4. The Tribunal notes DVFW’s concern that personal, very sensitive information is included in the documents produced under summons.

5. Comcare and DVFW provided written submissions to the Tribunal.  They both addressed the principles that have been enunciated by the Courts and this Tribunal. 

6. In terms of all the authorities that are before the Tribunal, including Richmond v Comcare [2019] AATA 100, Warner v Comcare [2017] AATA 2709, Oliver v Comcare [2018] AATA 1964, Chin v Comcare [2017] AATA 634 at [21] and LMFP v Comcare [2017] AATA 1512 at [3], in the Tribunal’s view this case falls into a category of management of the claim for the accepted condition and, in saying that, I include Allianz, Comcare and DHS, because they all have a role, through delegations and so on, in the management of DVFW’s accepted condition. The use of the documents is not for a collateral purpose. Their use is therefore not subject to the implied undertaking and leave to be released from that undertaking is not necessary.

7. Proceedings 2018/3869 and 2018/4369 are both part of the claims management process because the Tribunal is reviewing a decision of Comcare or a delegate of Comcare and its decision will bear upon the management of DVFW’s accepted condition.

8. DVFW argued that the documents related to a period “a long time ago” and have already been looked at in the previous proceeding in this Tribunal by another member and therefore it was not relevant to the current proceedings.   The Tribunal can see that the documents are relevant to the issues in this case which involve the management of the accepted condition, noting the argument Comcare has flagged that DVFW no longer suffers from the accepted condition.

9. If the Tribunal’s view was wrong, and the use of the documents was for a collateral purpose, it would grant leave, as Deputy President Rayment did, in LMFP v Comcare and for the reasons that he did:

   ·First, the documents are sought by a respondent for the proper purpose of claims management in pursuance of its statutory duties under the SRC act.

   ·Secondly, the documents would be available to be the subject of summonses to produce, in due course, in the event that Comcare makes a decision adverse to the applicant in the future and the applicant seeks review of those decisions.

   ·Thirdly, that DVFW authorised Comcare to collect and retain information in handling her claim.

10. For those reasons, the Tribunal decides that the Respondent and its delegates do not require a release from the implied undertaking in order to use the documents produced to the Tribunal under summons and included in the Supplementary T-Documents received 7 March 2019, ST1 to ST 33 inclusive, for the purpose of management of DVFW’s claims in respect of her accepted condition, ‘aggravation of personality disorder’.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............................[SGD].........................................

Associate

Dated: 5 August 2019

Date(s) of hearing:	7 June 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Schofield, Comcare