Funk and Military Rehabilitation and Compensation Commission
[2008] AATA 1044
•20 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1044
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3116; 2008/3117;
VETERANS' APPEALS DIVISION ) 2008/3119; 2008/3120 Re MELVYN FUNK Applicant
And
MILITARY REHABILITATION and COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date 20 November 2008
PlaceBrisbane
Decision The Tribunal directs that no further action be taken in relation to these proceedings without the leave of the Tribunal.
.......................[sgd].......................
Deputy President
CATCHWORDS
COMPENSATION – injuries said to be received as a result of military service – liability not accepted – notices to attend medical examinations issued under s 57 of the Safety, Rehabilitation and Compensation Act 1988 – whether the notices were lawful – whether the applicant had a reasonable excuse for failing to attend the medical appointments – notices were issued lawfully – no reasonable excuse – s 57 operates to suspend the applicant’s right to continue with the proceedings – no further action to be taken in relation to these proceedings without the leave of the Tribunal
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 57
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Telstra Corporation Limited v Administrative Appeals Tribunal (2003) 37 AAR 40
Trajkovski v Telstra (1998) 81 FCR 459
REASONS FOR DECISION
20 November 2008 Deputy President P E Hack SC Introduction
1.There are four applications before the Tribunal in which Mr Melvyn Funk seeks to review decisions of the respondent, the Military Rehabilitation and Compensation Commission. The decisions in issue are:
(a)in application 2008/3116 – a decision of 6 May 2008 affirming on re-consideration the Commission’s decision of 5 June 2007 denying liability to pay compensation to Mr Funk for a condition of allergic rhinitis;
(b)in application 2008/3117 – a decision of 21 May 2008 affirming on re-consideration the Commission’s decision of 5 June 2007 denying liability to pay compensation to Mr Funk for a condition of gout;
(c)in application 2008/3119 – a decision of 30 June 2008 affirming on re-consideration the Commission’s decision of 5 June 2007 denying liability to pay compensation to Mr Funk for a condition of lumbar spondylosis;
(d)in application 2008/3120 – a decision of 30 June 2008 affirming on re-consideration the Commission’s decision of 5 June 2007 denying liability to pay compensation to Mr Funk for a condition of cervical spondylosis.
2.I am not presently concerned with the merits of these decisions, rather I am concerned to determine whether Mr Funk’s rights to continue the proceedings are suspended by virtue of s 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The legislation
3.Where an employee has made a claim for compensation, s 57(1) of the SRC Act permits:
“the relevant authority [to] require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.”
It is accepted that the Commission is a “relevant authority”.
4.Sub-sections 57(2), (3) and (4) of the SRC Act have some significance. So far as is relevant they provide:
“(2)Where an employee refuses or fails, without reasonable excuse, to undergo an examination … the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(3)The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination …
(4)The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:
(a)the means of transport available to the employee for the journey;
(b)the route or routes by which the employee could have travelled; and
(c)…”
This application
5.It is necessary to focus, at the outset, on the jurisdictional context in which the present controversy falls to be determined and to isolate the precise questions that are posed. It is not clear from the material that the Commission has made, or has purported to make, a decision that Mr Funk’s rights to continue the present proceedings are suspended. It would not matter whether it has or not. Had such a decision been made it is not one capable of being reviewed in this Tribunal[1].
[1] See Australian Postal Corporation v Forgie (2003) 130 FCR 279 at 294, [72]-[74].
6.As it seems to me the task that I am required to perform, given the issues that arise between the parties, is best expressed in the words of Tamberlin J in Trajkovski v Telstra[2]. In that case the Tribunal was concerned with a dispute about s 37 of the SRC Act which has similar consequences to s 57 of the SRC Act, were an employee to refuse, without reasonable excuse, to undertake a rehabilitation programme. The Tribunal held that it had no jurisdiction to review the reasonableness of the failure to undertake the programme. In allowing the employee’s appeal his Honour said[3]:
“In the present case, in my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of "reviewing" any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction. The AAT has declined, in this case, to examine and determine the factual and legal questions necessary to decide whether it had jurisdiction. The effect of the AAT's failure to look at the jurisdictional issue was to preclude itself from considering the substantial question because it was not considered to be one which involved a review of a decision made by Telstra. Such an approach is erroneous and unduly restrictive.
This approach was wrong in law. The AAT had the competence to form an opinion, albeit not a conclusively binding one, for the purpose of exercising its jurisdiction on the substantive question as to the merits of the determination and should have done so.”
[2] (1998) 81 FCR 459.
[3](1998) 81 FCR 459 at 468-9.
7.As a consequence of the present controversy about s 57 of the SRC Act there is a controversy about the Tribunal’s jurisdiction. Whilst the arguments were not articulated in precisely this way the effect of them was that the Commission contends that the conduct of Mr Funk attracts the operation of s 57(2) of the SRC Act with the consequence that his rights to continue the present proceedings have been suspended and the further consequence that the tribunal lacks jurisdiction to take any further steps in the proceedings. Mr Funk contends to the contrary and says that, either because the s 57 notices were issued unlawfully, or because he had a reasonable excuse for his failure to comply with them, (or both), his rights have not been suspended and the Tribunal has jurisdiction such that the proceedings ought continue in the ordinary way through to hearing.
8.Thus the questions that I am required to consider in determining whether or not the proceedings are, in effect, suspended are these:
(a)were the notices lawful?
(b)did Mr Funk have a reasonable excuse for his admitted failure to attend the examinations in accordance with the notices?
Background
9.The background to the matter is not in dispute. Most of what follows is drawn from the affidavit of the solicitor for the Commission, Mr J T McIntyre, and the correspondence exhibited to that affidavit.
10.In making the decisions subject of the applications the Commission had relied upon opinions expressed by Dr A Casperson, a compensation medical adviser and Dr David Spain, a consultant emergency physician.
11.Each of the applications was filed on 11 July 2008. On 6 August 2008 Mr Funk caused to be lodged in the Tribunal an authority appointing Mr Bob Szatmary of the Vietnam Veterans’ Federation, Qld Branch Inc (the Federation), to act for him in the proceedings. Similar notification was given to DLA Phillips Fox, the solicitors for the Commission.
12.By letter dated 27 August 2008, and sent by facsimile on that day, DLA Phillips Fox informed the Federation that appointments had been made for Mr Funk to be examined by Dr Russell J Bird, an ear, nose and throat specialist, in relation to the claim regarding allergic rhinitis, by Dr Bruce McPhee, an orthopaedic surgeon, in relation to the claims for lumbar and cervical spondylosis and by Dr Phillip Vecchio, a rheumatologist, in relation to the claim for gout. Each appointment was proposed at locations in Brisbane.
13.The Federation responded to that letter by its letter to DLA Phillips Fox of 3 September 2008. That letter pointed out that the agreement of Mr Funk and his representative had not been sought before the appointments had been made and that Mr Funk did not accept any liability for costs and expenses in connection “with his attendance or non attendance to these appointments”. The letter then continued:
“To assess the probative value of the proposed three new medical examinations and in consideration that he has already been examined by Dr Spain for MLCOA for the same purposes, it is necessary to consider apprehension of bias also. To assist this assessment, please provide answers to the following questions:
1.What is the intent of the three appointments?
2.What information relating to Mr Funk has been or will be, provided in advance to each medical professional?
3.Have any of the medical professionals been provided or will they be provided in advance, with specific questions to which you seek answers? If yes, please provide me with a list of those questions?
4.Have any of the three medical professionals been instructed, or will they be instructed to use particular words, grammar or sentence structure formats when developing their reports after each proposed examination?
5.How much time is allocated for each medical examination?
6.What things if anything, do you require Mr Funk bring with him to each medical examination?”
The letter went on to suggest that, having regard to Mr Funk’s health, age and financial circumstances, DLA Phillips Fox would be asked to arrange for payment in advance of his transport and lunch costs. Transportation by chauffeured limousine was suggested.
14.Then on 5 September 2008 the Federation sent a further letter to DLA Phillips Fox confirming that Mr Funk would not attend the appointments but offering to attend “alternative medical assessment appointments if necessary, on the Gold Coast and Beenleigh only”. A response to the letter of 3 September 2008 was also sought.
15.On 8 September 2008 DLA Phillips Fox responded with a letter to the Federation advising that alternate arrangements had been made for Mr Funk to be examined by medical practitioners on the Gold Coast. It was proposed that Mr Funk attend examinations by Dr David Cronin, an ear, nose and throat specialist, at 13 Carrara Street Benowa on 8 October 2008 at 10.30 am, by Dr Vecchio at Pacific Private Hospital, Nerang Street Southport on 20 October 2008 at a time to be confirmed but between 2-3 pm and by Dr Peter Dodd, an orthopaedic surgeon, at 16 Tweed Street Southport on 28 October 2008 at 2 pm.
16.Copies of the letters of instruction to each of those doctors were sent to the Federation under cover of a letter from DLA Phillips Fox dated 18 September 2008. That letter confirmed that the assessments had been arranged at the cost of the Commission, that one hour was usually allocated for a medico-legal examination and that Mr Funk ought take any x-rays or other scans to the appointment with Dr Dodd.
17.The Federation responded to these arrangements by letter dated 22 September 2008 which read, in part:
“Mr Funk conditionally agrees to consider attending the appointments with Dr David Cronin and Dr Peter Dodd but that he will not attend with Dr Vecchio. Please choose a locally practicing [sic] rheumatologist and, note that Mr Funk does not accept liability for payment under any circumstances for non attendance. As a condition of Mr Funk’s consideration to attend the three new medical evaluations please provide written answers to the following questions:
1.What is the specific intent of each new medical evaluation and examination?
2. Why does your client want three new evaluations after having already caused Mr Funk to submit to professional evaluations with Dr Spain?
3. Does your client now agree that Dr Spain’s report (T12) is not probative, is insufficient and not supportive of the decisions under appeal?
4.Will the medical professionals be provided with questions to which your client seeks answers? If yes, please provide me with a list of those questions?
5.Will the medical professionals be instructed to use particular words, grammar or sentence structures that limit, restrict or influence the freedom of medical opinions and expression?
6.What things if anything, should Mr Funk take to each medical examination?”
DLA Phillips Fox responded by letter dated 23 September 2008. The details of that response need not be recited.
18.There was further correspondence from the Federation to DLA Phillips Fox on 3 October 2008. That letter read, so far as is presently material:
“Your client’s rejection of [Mr Funk’s] claims are [sic] premised on Dr Spain’s expert evaluations. After subjecting Mr Funk and the [Federation] to extreme efforts and expense your client belatedly seeks a new opportunity to review the evidence upon which it relied to reject [Mr Funk’s] claims. The notion that [Mr Funk] undergoes a new round of medical evaluations with three new medical specialists is untenable without more. Mr Funk declines to attend them.”
That letter also sought an explanation for the Commission seeking to have Mr Funk examined by Dr Vecchio.
19.As a consequence of the attitude evidenced in the letter of 3 October 2008 the Commission served on Mr Funk three notices expressed to be given in reliance upon s 57 of the SRC Act. Those notices were dated 8 October 2008 and were served on Mr Funk by registered post sent that day. They required Mr Funk to attend examinations by Dr Vecchio at Pacific Private Hospital, Nerang Street Southport on 20 October 2008 between 2-3 pm, by Dr Peter Dodd, an orthopaedic surgeon, at 16 Tweed Street Southport on 28 October 2008 at 2 pm and by Dr David Cronin, an ear, nose and throat specialist, at 13 Carrara Street Benowa on 5 November 2008 at 1 pm.
20.The Federation responded to the service of these notices by letter to DLA Phillips Fox dated 17 October 2008. That letter suggested, quite gratuitously, that the Commission’s solicitor and the official from the Commissioner who had executed the notices were “not acting in good faith” because of an apparent concern on the part of the Federation that the notices had been sent by the Commission rather than by its solicitors. It was said that it was “unreasonable” that Mr Funk and the Federation “be put to the efforts and expense of dealing with two different teams of professionals from two different directions”. It also suggested that the notices were “unlawful” because Mr Funk had already attended upon Dr Spain. The letter continued:
“Notwithstanding the above, Mr Funk will submit to three new medical assessments subject to the following:
1.That each medical specialist is given the applicant’s employment, service, training and medical records dating from 14 January 1955.
2. That each medical specialist is also given an overview from the applicants’ [sic] perspective.
3. That Dr Casperson’s and Dr Spain’s reports are removed from the list of documents to be given to the three new specialists. On this issue please advise whether or not the three medical specialists are already in possession of the two reports?
4.That the instructions and questions put to the three specialists by your client are revised and developed jointly with the applicant’s input and agreement.”
21.Thereafter DLA Phillips Fox requested that the matter be listed for directions and directions were made on 24 October 2008 for the lodging and service of affidavits and submissions.
22.It is common ground that Mr Funk did not attend any of the appointments subject of the notices dated 8 October 2008.
Were the notices lawful?
23.Mr Szatmary, the advocate who appeared on behalf of Mr Funk, advanced four arguments in support of his overall contention that the s 57 notices were unlawful. This conclusion was said to arise because:
(a)there was a denial of natural justice and procedural fairness because Dr Casperson and Dr Spain, who had earlier provided reports to the Commission, had not been provided with all relevant material;
(b)the Commission proposed to provide the reports of Dr Casperson and Dr Spain to Dr Vecchio, Dr Dodd and Dr Cronin;
(c)the Commission could not rely upon s 57 of the SRC Act since it did not apply to the present claim because the claim had not been accepted with the result that s 124 of the SRC Act was not engaged; and
(d)the power in s 57 of the SRC Act to require Mr Funk to attend the examinations was spent when Mr Funk voluntarily attended upon Dr Spain, even though the s 57 power had not been relied upon by the Commission in having Dr Spain undertake that examination.
24.There is no evidence, beyond assertion in the correspondence, which establishes the factual premise of the first proposition. Despite that, I propose to assume, favourably to Mr Funk, that the Commission has not provided to Dr Casperson and Dr Spain, as Mr Szatmary submitted it ought, all of Mr Funk’s training, medical, military and sporting records from when he joined the services in 1955. I am unable to see how that could possibly impact upon the lawfulness of the s 57 notices. It might, were that material to be demonstrated to be relevant, detract from the weight to be attributed to a report uninformed by the material, but that has nothing to do with the Commission’s decision to serve the s 57 notices.
25.Moreover, the introduction of notions of natural justice and procedural fairness confuses the task that the Tribunal performs in undertaking its review of the Commission’s decision. The Tribunal is not concerned with the process by which the decision was reached, that is the province of the Federal Court on judicial review. This Tribunal, in undertaking merits review, is concerned to determine the correct decision on the basis of the material put before it by the parties. It is open to Mr Funk to argue that less weight or no weight ought be given to the opinions of Dr Casperson and Dr Spain if the Commission were to rely upon those opinions at the hearing but that is an entirely different matter to the lawfulness of the decision to issue and serve the s 57 notices.
26.The same is true of the second point. The contention seems to assume that the medical practitioners will be diverted from the task of providing an independent examination, where their duty is owed to the Tribunal and not to the Commission, by the earlier opinions of other practitioners. But if that assumption were to be made good that would reflect upon the weight to be afforded that opinion. The fact of the provision of the earlier reports, in the absence of any statutory prescription about the way in which an examination under s 57 is to be informed, does not make the requirement to attend unlawful.
27.The basis of the third contention is that the underlying conditions are said to have arisen during an earlier statutory regime. By way of example, Mr Funk first sought treatment for the condition of allergic rhinitis, subject of application 2008/3116, at a time when the Commonwealth Employees’ Compensation Act 1930 (Cth) was in force, but his claim has been made in accordance with s 54 of the SRC Act.
28.Of course if the argument is correct it may be wondered why the proceedings are before the Tribunal, however the argument is plainly misconceived. The effect of s 124 of the SRC Act is plain. The SRC Act applies to an injury suffered by an employee before the commencement of the Act and the employee is entitled to compensation under the SRC Act provided the employee was, or would have been, entitled to compensation under the statutory regime in force at the time the injury was suffered. It is not to the point that the Commission has rejected Mr Funk’s claims, because Mr Funk is seeking merits review of those decisions.
29.The final argument is equally misconceived. It was never made clear why Mr Funk’s agreement to attend a medical examination, where the Commission’s power under s 57 of the SRC Act was not relied upon, could be, or be analogous to, an exercise of the s 57 power, but even if it were the power is not so limited. The Commission is not precluded by the SRC Act from sending a claimant to multiple examinations, indeed the express restriction in s 57(6) of the SRC Act on the frequency of examinations suggests quite the contrary.
30.It may be accepted that the s 57 power could be exercised in a manner that was oppressive such that its effect on a claimant might provide a reasonable excuse[4]. But that argument was not raised nor is it even remotely open on the material.
[4]See Telstra Corporation Limited v Administrative Appeals Tribunal (2003) 37 AAR 40 at [11].
31.I reject the contention that the notices were unlawful.
A reasonable excuse?
32.Only one basis was put forward in support of the contention that Mr Funk had a reasonable excuse. That was that the Commission did not propose to provide to the examining doctors all of Mr Funk’s training, medical, military and sporting records from when he joined the services in 1955.
33.There are difficulties with that proposition. First, it is not at all clear that that was an excuse relied upon by Mr Funk for his refusal to attend the examinations. Neither Mr Funk’s affidavit nor the correspondence suggests that that omission was the basis of Mr Funk’s refusal to attend the examinations. Indeed Mr Funk’s affidavit is notable for its reliance on hyperbole and assertion and the absence from it of evidence of fact. But in any event, the failure to provide that material (if it be a failure) does not provide a reasonable excuse to Mr Funk. As I have sought to explain, the statute does not restrict the manner in which the Commission may exercise the power in s 57 of the SRC Act. The matters of which Mr Funk complains, if relevant, go to the weight to be afforded to the medical opinion; the failure to provide material does not provide a reasonable excuse for the failure to attend the examinations.
34.At one time Mr Szatmary was minded to argue that Mr Funk had a reasonable excuse because he had not been offered funds to pay for his costs of travelling to the examinations. The argument was not persisted with when attempts were made to ascertain its foundation in the evidence. The evidence was, in fact, quite to the contrary.
35.I should, finally, deal with one matter, which was not made the subject of any particular contention but which appears to have affected the approach by Mr Funk to the requirement to attend these medical examinations. The point is illustrated by this extract from the affidavit of Mr Funk:
“The applicant exercises his right not to submit to new medical examinations unless the medical specialists conducting the examinations are;
a. Fully informed by the respondent and applicant.
b. Are not fettered in the expression of professional medical opinions
c. Not permitted to express personal or legal opinions
d. Free from apprehended or actual bias”.
36.Of course Mr Funk has the “right” not to submit to medical examinations when required to do so by a notice issued under s 57 of the SRC Act. But the price he pays if he does so, and where he does not have a reasonable excuse, is that he loses his right to continue the present proceedings. I am unaware of any basis, and none was suggested in argument, on which Mr Funk could found a “right” to require the Commission to agree what questions should be posed to the examiner, or to dictate the manner in which opinions are to be expressed or what material should or should not be provided to the examiner, or, indeed, who the Commission should engage to undertake the examination. Mr Funk’s remedy, if the evidence relied upon by the Commission suffers from defects from causes such as these, is to demonstrate those flaws in the hearing process.
Conclusion
37.It follows that I am satisfied that the circumstances exist under which s 57 of the SRC Act stipulates that Mr Funk’s rights to continue with these proceedings are suspended and will remain suspended until the examinations take place. The SRC Act operates to dictate that conclusion. However, out of an abundance of caution, I shall direct that no further action be taken in relation to these proceedings without the leave of the Tribunal. If Mr Funk can demonstrate that the examinations have taken place, either by evidence if there is a contest or by agreement with the Commission, the matters can proceed through the interlocutory steps to hearing.
38.I would add only that there is no foundation in any of the material for the frequent accusations of bad faith and bias that the correspondence from the Federation make against the Commission, its solicitors and the medical practitioners engaged or proposed to be engaged. Those allegations are hurtful and ought not be made except where there is a genuine factual basis to do so.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .............................[sgd]...................................................
Jacqueline Woods, AssociateDate/s of Hearing 12 November 2008
Date of Decision 20 November 2008
For the Applicant Vietnam Veterans’ Federation, Qld Branch Inc
Solicitors for the Respondent DLA Phillips Fox
4
0