GAVIN McLENNAN and MILITARY REHABILITATION and COMPENSATION COMMISSION

[2009] AATA 608

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 608

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0974

GENERAL ADMINISTRATIVE DIVISION		)
Re		GAVIN McLENNAN

Applicant

And MILITARY REHABILITATION and COMPENSATION COMMISSION  

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date11 August 2009

PlaceBrisbane

Decision The Tribunal directs that no further action be taken in relation to these proceedings without the leave of the Tribunal.

...............Signed..................

Deputy President

CATCHWORDS

COMPENSATION – compensation for permanent impairment – refusal to attend medical examination – whether the applicant had a reasonable excuse for refusing to attend – whether the respondent’s power to require attendance already spent - 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

Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102; 37 AAR 40

Trajkovski v Telstra (1998) 81 FCR 459

Re Mutton & Linfox Armaguard Pty Ltd [2009] AATA 352

REASONS FOR DECISION

11 August 2009   Deputy President P E Hack SC

1.In the substantive proceedings the applicant, Mr Gavin McLennan, seeks a review of a decision made by the respondent, the Military Rehabilitation and Compensation Commission, on 14 January 2009. That decision affirmed on re-consideration an earlier determination of the Commission made on 30 June 2008 that the Commission was not liable to pay Mr McLennan compensation for permanent impairment for an accepted injury of “irritable bowel syndrome”.

2.I am presently concerned with the consequences of a notice given to Mr McLennan by the Commission in reliance on s 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) which required Mr McLennan to undergo an examination by Professor Michael O’Rourke, a legally qualified medical practitioner nominated by it.

3.It is common ground that prior to the appointment, which was scheduled to take place on 11 June 2009, Mr McLennan contacted the doctor’s office to advise that he would not be attending the appointment. That refusal was confirmed in an e-mail from Mr McLennan’s solicitor to the solicitor for the Commission late on the afternoon of 10 June 2009.

4.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.”

The Commission is a “relevant authority”.

5.Sub-sections 57(2) has some significance. It provides:

“(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.”

6.It is well-settled that the Tribunal does not have power to review a “decision” by the Commission that the employee’s rights to continue with proceedings are suspended; the statute stipulates the circumstances in which suspension occurs[1]. The task that I am required to perform 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.”

[1]Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102, 37 AAR 40, at 9].

[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 which needs to be determined. The argument for Mr McLennan was that he had already undergone an examination required by s 57 of the SRC Act. The effect of the argument, as I understood it, was that reference in s 57(1) to “one legally qualified medical practitioner” meant that the power of the Commission to require examination was spent. There was, as well, a suggestion in the material (although not advanced at the hearing) that Mr McLennan had a reasonable excuse because the Commission was “doctor shopping”.

8.The Commission contends that Mr McLennan’s refusal to attend the examination 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.

9.Mr McLennan 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.

10.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 McLennan have a reasonable excuse for his admitted failure to attend the examinations in accordance with the notices?

11.The argument for Mr McLennan about the lawfulness of the requirement cannot be accepted. It is contrary to a long line of authority to the effect that:

“The language used in s 57(1) in its present form does not prohibit, in terms, a number of examinations but on a plain reading requires that each examination should be by only one legally qualified medical practitioner as opposed to a panel or group of practitioners all of whom are legally qualified.”[4]

[4]Re Mutton & Linfox Armaguard Pty Ltd [2009] AATA 352 at [17].

12.I see no reason, and none was suggested, to depart from this line of authority. Thus I reject the proposition that the Commissioner’s requirement to attend the examination was not lawful.

13.It is difficult to see how it could be concluded that the Commission was “doctor-shopping”.  As the submissions for the Commission point out there is a degree of confusion in the existing medical evidence that I would have thought warranted the obtaining of a further report. But a conclusion of “doctor-shopping” (that I am, in any event, not able to make on the present material) would not assist Mr McLennan. That is so for the reasons expressed by Kiefel J in Telstra Corporation Limited v Administrative Appeals Tribunal where her Honour said:

“11The question the Tribunal was required to address was whether the circumstances referred to in s 57 were present. In doing so, it must consider whether Mr Rodriguez has a reasonable excuse for not complying with the notice. It is obvious that the Tribunal took a different view as to whether an examination was necessary to permit Dr Reddan to present further evidence. It is understandable that the Tribunal wished to advance the proceedings and perhaps regrettable, at this point, that yet another examination was to be undertaken. These proceedings have been on foot for some years, have received the attention of a number of doctors and resulted in lengthy hearings before the Tribunal. In that process Mr Rodriguez has been examined by a number of doctors, including Dr Reddan. However, the question addressed by the Tribunal was not, in my view, that posed by the subsection. The Tribunal considered whether the expert witness for Telstra could reasonably be said to need the further examination. It reasoned that an examination was not required. The conclusion it reached was, in reality, that Mr Rodriguez ought to be excused, rather than that he himself had an excuse for non-attendance. Generally speaking, the subsection requires a reason personal to the employee. The excuse cannot be provided by an opinion formed by the Tribunal as to the need for the examination. That is a question for the Authority. It may be in some cases that oppressive conduct on the part of an Authority, and its effect upon an employee, could be relied upon as furnishing a reasonable excuse. Such a contention is not advanced here.”

14.To contend that the Commission was “doctor-shopping” does not advance a reason “personal to the employee” short of a suggestion, not advanced here, that it was in some way oppressive conduct on the part of the Commission to require the examination. To put the matter in the way advanced by Mr McLennan invites the error identified by Kiefel J of asking whether, reasonably, Mr McLennan ought to be excused rather than whether he had a reasonable excuse.

15.It follows that I am satisfied that the circumstances exist under which s 57 of the SRC Act stipulates that Mr McLennan’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. It will be for Mr McLennan to determine what steps he ought now take however he ought be aware that there is power under s 42A(5)(a) of the Administrative Appeals tribunal Act 1975 (Cth) to dismiss proceedings where an applicant fails within a reasonable time to proceed with an application.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ........................Signed..........................................
  Melissa Hamblin, Associate

Dates of Hearing  10 August 2009
Date of Decision  11 August 2009
Solicitors for the Applicant        Cockburn Legal & Consulting
Solicitors for the Respondent    Australian Government Solicitor