Guerriero and Comcare (Compensation) - [2017] AATA 2984

Guerriero and Comcare (Compensation) [2017] AATA 2984 (8 December 2017)
Division:GENERAL DIVISION
File Numbers: 2016/2115, 2017/3082 and 2017/3342
Re:Vincenzo Guerriero
APPLICANT

AndComcare
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Deputy President K Bean
Date of decision: 8 December 2017

Date of written
reasons: 2 February 2018
Place:Adelaide

The applicant’s right to continue applications 2017/3082 and 2017/3342 is currently suspended by operation of section 57(2) of the Safety, Rehabilitation and Compensation Act 1988.
.................[Sgd]................................................
Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Comcare directs applicant be examined by a medical practitioner pursuant to s 57 of the Safety, Rehabilitation and Compensation Act 1988 – meaning of “one legally qualified medical practitioner” in s 57 – applicant refuses to attend s 57 examination – whether applicant has demonstrated a reasonable excuse for non‑attendance – whether applications to Tribunal are suspended as a result of the applicant’s non‑attendance – whether suspension extends to all rights or only rights relating to the injury for which the applicant was required to be examined – applicant’s rights to continue the Tribunal proceedings relating to his psychiatric injury are suspended until he attends the examination as directed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 14, 57
CASES
Mutton and Linfox Armaguard Pty Ltd [2009] AATA 352; (2009) 111 ALD 243
Bessell and Telstra Corporation Ltd [1994] AATA 317
Telstra Corporation Ltd v Administrative Appeals Tribunal [2003] FCA 102; (2003) 37 AAR 40
Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213 FCR 449
REASONS FOR DECISION
Deputy President K Bean
2 February 2018

These proceedings relate to a claim by Mr Guerriero for compensation in respect of a psychiatric injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
In the course of Comcare’s assessment of that claim, Comcare arranged for Mr Guerriero to be examined by a psychiatrist, Dr Papier, on 24 January 2017. Mr Guerriero attended the examination. That examination was not pursuant to a formal direction by Comcare under s 57 of the SRC Act and was prior to Mr Guerriero lodging applications with the Tribunal for review of Comcare’s decisions in relation to his claim for a psychiatric injury. Those applications were lodged on 26 May 2017 and 2 June 2017 respectively.
Subsequent to Dr Papier’s examination and commencement of the Tribunal proceedings, Comcare formed the view that Mr Guerriero did not provide an accurate, complete or truthful history to Dr Papier and as such, the conclusions reached by Dr Papier in relation to the causation of his psychiatric injury could not be accepted. Having taken that view, Comcare arranged for another examination of Mr Guerriero in the context of the Tribunal proceedings, this time with a different psychiatrist, Dr Hundertmark. The examination was scheduled for 25 October 2017.
On 24 August 2017, Mr Guerriero’s solicitor advised Comcare that Mr Guerriero would not be attending the assessment with Dr Hundertmark. Two reasons were given. First, that s 57 of the…

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 Guerriero and Comcare (Compensation)

Details

AGLC: Guerriero and Comcare (Compensation) [2017] AATA 2984
Case: [2017] AATA 2984
Decision Date: 8 December 2017

CaseChat Overview and Summary

This matter concerned an appeal before Deputy President K Bean P of the Administrative Appeals Tribunal, brought by Mr Guerriero against a direction issued by Comcare. Comcare had directed Mr Guerriero to undergo a medical examination pursuant to section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Mr Guerriero refused to attend this examination, and the core dispute revolved around whether he had a reasonable excuse for his non-attendance and the consequences of such refusal.

The Tribunal was required to determine two primary legal issues. Firstly, it needed to interpret the meaning of "one legally qualified medical practitioner" within section 57(1) of the Act, specifically whether this phrase limited the number of examinations that could be required. Secondly, the Tribunal had to consider whether Mr Guerriero had demonstrated a reasonable excuse for refusing to attend the examination, and if not, what the legal effect of his non-attendance was on his applications before the Tribunal.

In addressing the interpretation of section 57(1), the Tribunal found that the phrase "one legally qualified medical practitioner" does not limit the number of examinations that can be required, but rather dictates that each examination must be conducted by a single practitioner, not a panel. Regarding the reasonable excuse, the Tribunal considered whether the proposed examination was oppressive. While acknowledging that oppressive conduct could constitute a reasonable excuse, it found that Mr Guerriero had not sufficiently demonstrated that the examination by Dr Hundertmark would be more distressing or anxiety-producing than a previous examination, nor had it been shown to lack clinical merit for the purpose of a medico-legal assessment. Consequently, the Tribunal concluded that Mr Guerriero had not established a reasonable excuse for his non-attendance.

The Tribunal ordered that Mr Guerriero's right to continue with the Tribunal proceedings relating to his psychiatric injury, specifically applications AAT 2017/3082 and 2017/3342, was suspended by operation of section 57(2) of the Act. This suspension would remain in effect until he attended the examination as directed.

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

Whilst Sinnaiah concerned a different section of the SRC Act, I note that s 37(7) and s 57(2) are couched in nearly identical terms. I therefore adopt their Honours reasoning in Sinnaiah. In my view, Mr Guerriero’s right to continue these proceedings is suspended only in relation to the two claims relating to his psychiatric injury, that is AAT Applications 2017/3082 and 2017/3342. I note the suspension will come to an end if he attends the examination with Dr Hundertmark currently scheduled for 13 December 2017.DECISION The applicant’s right to continue applications 2017/3082 and 2017/3342 is currently suspended by operation of s 57(2) of the Safety, Rehabilitation and Compensation Act 1988.

Ratio Decidendi

Legal Principle Established

With respect to Dr Pearce’s report of 3 November 2017, Mr Lehmann urged the Tribunal to put little weight on this report, as it contained what amounted to a mere “bold assertion”.CONSIDERATION I turn now to my consideration of the main issues.The interpretation of “one legally qualified medical practitioner” in section 57 Starting first with the interpretation of the phrase “one legally qualified medical practitioner” in s 57(1), I consider that the authorities have conclusively clarified that the reference to “one legally qualified medical practitioner” in s 57(1) does not place a limit on the number of examinations which can be required. As Deputy President Tamberlin held in Mutton, agreeing with the earlier decision of Deputy President Breen in Bessell: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.When the terms of s 57(1) are considered together with the parliamentary material and the circumstantial background to the insertions of the amendment and when regard is had to the considerations referred to in the decision of Deputy President Breen (Re Bessell) the correct interpretation, in my view, is that the provision does not prevent more than one examination.[12][12] Mutton and Linfox Armaguard Pty Ltd [2009] AATA 352, [17]-[18].Has the applicant demonstrated a reasonable excuse for non-attendance? That s 57(1) envisages more than one examination is not fatal to an applicant’s case, however. As I understood Mr Rischbieth’s submission, it was not ultimately contested that Comcare could require Mr Guerriero to be examined more than once. However, what was contested was whether requiring Mr Guerriero to be examined again by a different psychiatrist was oppressive, especially in light of the report of Mr Guerriero’s general practitioner noting his increased anxiety levels and the generous number of medical reports already in existence in relation to Mr Guerriero’s claimed condition. If requiring Mr Guerriero to attend the examination with Dr Hundertmark can be said to be oppressive, Mr Guerriero would potentially have a reasonable excuse under s 57(2). As Kiefel J held in Telstra Corporation Ltd v Administrative Appeals Tribunal [2003] FCA 102; (2003) 37 AAR 40 at [11], “[i]t 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”. However, it is not entirely clear to me what precise effect attending an examination with Dr Hundertmark would have on Mr Guerriero. Whilst I note what Dr Pearce has said about Mr Guerriero’s increasing anxiety levels, Dr Pearce did not note the severity of the increasing anxiety levels, or any other deleterious effect a further examination might have. Nor did he explain why or to what extent an examination by Dr Hundertmark would be more distressing or anxiety producing for Mr Guerriero than re‑examination by Dr Papier. In his report, Dr Pearce suggested that a further review might have “no clinical merit”. However, Dr Pearce’s opinion on whether a further examination has clinical merit does not offer much by way of establishing the existence of a “reasonable excuse” under s 57, noting that the only purpose of the further examination is to obtain a medico‑legal assessment.