Guerriero and Comcare (Compensation)

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.