Guerriero and Comcare (Compensation)
[2017] AATA 2984
•8 December 2017
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 2018Place: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 40Australian 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 SRC Act provides for examination by one legally qualified medical practitioner and Dr Papier had already assessed Mr Guerriero. Second, that being assessed again would cause Mr Guerriero stress and anxiety and negatively affect his prognosis. Mr Guerriero’s solicitor sent further e‑mails to Comcare on 4 September 2017 and 15 September 2017 reiterating that he would not be attending the scheduled examination on 25 October 2017.
On 31 October 2017, Comcare advised Mr Guerriero’s solicitor that his entitlements to compensation were suspended pursuant to s 57 of the SRC Act as of that date until Mr Guerriero attended an examination with Dr Hundertmark, which had been re-scheduled for 13 December 2017.
On 2 November 2017, Mr Guerriero’s solicitor advised Comcare that he was not going to attend the re‑scheduled examination with Dr Hundertmark. The reason given for the non‑attendance was because “no reasons have been provided as to why Dr Papier cannot re‑review our client”.
ISSUE FOR THE TRIBUNAL
On 21 November 2017, this matter was called on for an Interlocutory Hearing to determine whether Mr Guerriero’s right to institute or continue proceedings in relation to compensation have been suspended pursuant to s 57 of the SRC Act because of a failure to attend the scheduled examination with Dr Hundertmark on 25 October 2017 without reasonable excuse.
At the Interlocutory Hearing, both parties agreed that the central issue was whether Mr Guerriero had a reasonable excuse to not attend the scheduled examination with Dr Hundertmark on 25 October 2017. Mr Guerriero’s solicitor, Mr Rischbieth, contended that Mr Guerriero had a reasonable excuse not to attend the examination with Dr Hundertmark. The respondent’s legal representative, Mr Lehmann, made submissions to the contrary.
Following the Interlocutory Hearing, my Decision and Reasons were delivered orally on 8 December 2017. On 21 December 2017, Comcare requested written reasons. This written version of my Reasons has been prepared in the response to that request.[1]
[1] As s 43(2A) of the Administrative Appeals Tribunal Act 1975 is not applicable, the parties were advised that written Reasons would be given, but not necessarily within the 28 day period stipulated by that provision.
LEGISLATION
It is helpful at this point to outline the relevant terms of s 57 of the SRC Act, which are central to my decision:
57 Power to require medical examination
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2)Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs 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.
THE APPLICANT’S SUBMISSIONS
The submissions advanced by Mr Rischbieth at the Interlocutory Hearing in relation to the reasonable excuse for non‑attendance diverged slightly from what was previously conveyed in his correspondence to Comcare. Namely, Mr Rischbieth no longer contended that the reference to “one legally qualified medical practitioner” in s 57(1) meant that Comcare could not require Mr Guerriero to be examined by Dr Hundertmark given he had already been examined by Dr Papier. Mr Rischbieth maintained, however, that it was nonetheless significant that Mr Guerriero had already attended an examination with Dr Papier, as this was relevant to the determination of whether Mr Guerriero had a reasonable excuse for his non‑attendance.
By way of elaboration, Mr Rischbieth took the Tribunal through a number of medical reports and documents that were already in the T‑documents and Supplementary T‑documents to demonstrate the wealth of medical evidence already in existence in relation to Mr Guerriero’s claimed condition, some dating back over 20 years. The following documents were identified:
·File note of Comcare dated 24 November 1993;[2]
·Report of Belinda Osbourne, Occupational Therapist, dated 21 March 1995;[3]
·Report of Dr Pearce dated 18 May 1995;[4]
·Psychological Appraisal Report by Marianne Stacy, Psychologist, dated 16 June 1995;[5]
·Report of Audrey Greenway, Psychologist, dated April 29 1996;[6]
·Psychological Assessment Report of Ali Rinaldi, Psychologist, dated 23 May 1997;[7]
·Vocational Assessment Report by Jacky Dakin, Psychologist, dated October 2004;[8]
·Report of Vera Shaul, Psychologist, dated 11 August 2008;[9]
·Report of Sandra Wilkinson, Psychologist, dated September 2008;[10] and
·Report of Dr Begg, Psychiatrist, dated 22 October 2008.[11]
[2] Supplementary T-documents, ST58/800.
[3] T-documents, T19.
[4] T-documents, T22.
[5] Supplementary T-documents, ST17.
[6] T-documents, T40.
[7] Supplementary T-documents, ST78.1.
[8] T-documents, T-75.
[9] T-documents, T78.
[10] T-documents, T81.
[11] T-documents, T82.
Mr Rischbieth urged the Tribunal to consider these medical documents and to consider the medical evidence that had already been commissioned and obtained by Comcare. When the medical evidence was taken as a whole, it was submitted, effectively, there had already been multiple assessments of Mr Guerriero.
Further, Mr Rischbieth emphasised that Mr Guerriero had already been comprehensively examined by Dr Papier. Dr Papier was asked to consider all the medical evidence that was in existence at the time and she spent a considerable amount of time assessing Mr Guerriero. In those circumstances, Mr Rischbieth submitted that a further examination by Dr Hundertmark could be considered to be oppressive.
At the Interlocutory Hearing, Mr Rischbieth also referred to a report dated 3 November 2017 by Mr Guerriero’s general practitioner, Dr Pearce. In that report, Dr Pearce referred to Mr Guerriero’s increasing anxiety levels as a result of the “further review”. I took this to be a reference to the proposed examination by Dr Hundertmark. He added that he was concerned that Mr Guerriero was being made “inappropriately anxious by a review that has no clinical merit”.
Rather curiously however, and consistently with his previous correspondence with Comcare, Mr Rischbieth reiterated that Mr Guerriero would not be opposed to being re‑examined by Dr Papier. Presumably, this was because Dr Papier had already previously examined Mr Guerriero, the assumption being a re‑examination by Dr Papier would be less time‑consuming and taxing for Mr Guerriero than a fresh examination by Dr Hundertmark.
THE RESPONDENT’S SUBMISSIONS
In reply, Mr Lehmann submitted that Mr Guerriero had not demonstrated any reasonable excuse or any inability to attend another medical appointment. That there was no reasonable excuse for his non‑attendance was reinforced by the fact that Mr Guerriero was not opposed to attending another examination with Dr Papier. The respondent contended there was thus no medical basis for Mr Guerriero’s refusal to attend the examination with Dr Hundertmark.
With respect to the existing medical reports already commissioned by Comcare that are contained in the T‑documents and Supplementary T-documents, Mr Lehmann submitted that that was precisely why Comcare wanted Dr Hundertmark to assess Mr Guerriero. He contended that there were numerous inconsistencies in the already voluminous material that is before the Tribunal and in light of that material, Comcare had formed the view that Dr Hundertmark is the appropriate practitioner to assess Mr Guerriero because of his “forensic approach”. By way of example, Mr Lehmann emphasised Dr Hundertmark’s significant experience with Tribunal matters.
As to the correct interpretation of “one legally qualified medical practitioner” in s 57(1) of the SRC Act, Mr Lehmann submitted that that phrasing does not prevent Comcare from directing applicants to be examined more than once. To support this submission, he referred to the cases of Mutton and Linfox Armaguard Pty Ltd [2009] AATA 352; (2009) 111 ALD 243 (Mutton) and Bessell and Telstra Corporation Ltd [1994] AATA 317 (Bessell).
When asked why it would not be feasible for Comcare to arrange for extra questions and materials to be supplied to Dr Papier and for Mr Guerriero to be re‑assessed by Dr Papier, Mr Lehmann conceded that it would be feasible. However, he resisted any suggestion that the question of whether attending a particular medical examination was oppressive was answered by whether that particular medical examination was the only option. In other words, that Comcare could arrange for Dr Papier to re‑examine Mr Guerriero as an alternative to a fresh examination by Dr Hundertmark, is irrelevant. An applicant cannot dictate how Comcare chooses to run its case, he submitted.
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.
In relation to Mr Rischbieth’s submission on the substantial quantity of medical reports already in Comcare’s possession, I note that many of those reports were commissioned a number of years ago. Whilst Mr Guerriero has admittedly already been examined by a psychiatrist, Dr Papier, it is not unusual in the context of Tribunal proceedings for an applicant to be examined by more than one medical practitioner of the same specialty. Indeed, it is almost routine for one or both parties in a compensation matter to obtain a further report from a different doctor of the same speciality once proceedings are on foot in the Tribunal. I note also that the examination with Dr Papier was not pursuant to a s 57 direction. Therefore, Comcare requiring Mr Guerriero to attend the examination with Dr Hundertmark is the first time it has exercised its s 57 powers with respect to him. In those circumstances, in my view, Comcare requiring Mr Guerriero to attend an examination with Dr Hundertmark in the context of the Tribunal proceedings is not oppressive.
As to whether a re‑examination by Dr Papier should be preferred over a fresh examination by Dr Hundertmark, I note that Comcare’s current explanation for seeking out Dr Hundertmark’s medical opinion has departed to some extent from its original explanation. For instance, in its original written correspondence, Comcare explained that the rationale for seeking an opinion from Dr Hundertmark was because it was of the view that Mr Guerriero had given Dr Papier an inaccurate or incomplete medical history. However, the explanation now offered by Comcare is that Dr Hundertmark is the preferred psychiatrist to examine Mr Guerriero because of his significant expertise with Tribunal matters and his meticulous approach.
Nevertheless, I accept Comcare’s submission that whether an assessment by Dr Hundertmark was the only option is not the relevant question. The issue is not whether Comcare could, as a feasible alternative, require Mr Guerriero to instead be re‑examined by Dr Papier. Section 57(1) provides that: “the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority”.[13] Section 57 grants Comcare, as the relevant authority, the power to nominate its preferred medical practitioner for the purpose of requiring an employee to undergo an examination. The fact that a different practitioner could have been nominated, or that an employee would prefer to be re‑examined by a practitioner they have seen before, does not in my view give the employee a reasonable excuse not to attend a s 57 examination.
[13] Emphasis added.
For these reasons, I consider that Mr Guerriero has not established a reasonable excuse for not attending the appointment scheduled for 25 October 2017.
Which of Mr Guerriero’s applications are suspended as a result of section 57 of the SRC Act?
A final issue that needs to be considered is whether s 57(2) operates to suspend Mr Guerriero’s right to continue all three of his applications to the Tribunal, or only those two which relate to the s 57 request. In Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213 FCR 449 (Sinnaiah), the Full Federal Court considered s 37(7) of the SRC Act, and whether a failure to undertake a rehabilitation program suspends an employee’s rights to compensation in respect of all injuries, or only those injuries to which the program relates. The Court held at [30] that:
[the words “under this Act”] were not inserted in order to extend the suspension beyond the injury for which the rehabilitation program is ordered. The rights with which s 37(7) is concerned are the rights to compensation arising from that injury and the entitlement to enforce those rights by litigation.
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.
I certify that the preceding 33 (thirty‑three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
..................[Sgd]...............................................
Administrative Assistant
Dated: 2 February 2018
Date of hearing: 8 December 2017 Advocate for the Applicant: Mr H Rischbieth Solicitors for the Applicant: Johnston Withers Advocate for the Respondent: Mr P Lehmann Solicitors for the Respondent: Lehmann Snell Lawyers
4
3
0