Hanel and Comcare (Compensation)

[2022] AATA 261

Hanel and Comcare (Compensation) [2022] AATA 261 (16 February 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/5379
GENERAL DIVISION	)

Re: Phillip Lee Hanel
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Senior Member B J Illingworth

DATE OF CORRIGENDUM:            2 March 2022

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. At paragraph 36 the sentence beginning with “Albeit the applicant was not obliged to provide reasons” is replaced with “Albeit the respondent was not obliged to provide reasons”.

...........................[Sgnd]............................

B J ILLINGWORTH
  (Senior Member)

Division:GENERAL DIVISION

File Number(s):      2020/5379 & 2021/0997

Re:Phillip Hanel

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:16 February 2022

Place:Adelaide

The applicant’s rights to continue with the claims for compensation are suspended pursuant to s57(2) of the Safety, Rehabilitation and Compensation Act 1988, in consequence of the Notice of Suspension dated 21 July 2021.

The summons for production of documents issued to the respondent dated 7 October 2021 is dismissed.

..................[Sgnd]......................

Senior Member B J Illingworth

Catchwords

JURISDICTION – Section 57 Notice under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Independent Medical Examination – objection to Notice – does Applicant have reasonable excuse – Suspension – Tribunal has no jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australasian Postal Corporation v Forgie & Anor [2003] FCR 130

Lees v Comcare [1999] FCA 75

REASONS FOR DECISION

Senior Member B J Illingworth

16 February 2022

INTRODUCTION

1. This matter relates to a challenge by the applicant to a Safety, Rehabilitation and Compensation Act1988 (the “SRC Act”) s57 Notice of Suspension (the “Notice”) made by the respondent and dated 21 July 2021, suspending the applicant’s claims for compensation filed in the Administrative and Appeals Tribunal (the “Tribunal”).

2. The applicant asserted that the Notice was unlawful and accordingly his claims for compensation ought not be suspended.

3. The applicant appeared in person. The respondent was represented by counsel Mr Woulfe and Ms Khan from McInnes Wilson Lawyers

   BACKGROUND

4. The applicant filed two applications in the Tribunal for compensation pursuant to the SRC Act. The first application was for compensation under s14 of the SRC Act in proceedings numbered 2020/5379 for an adjustment disorder with anxiety and dated 4 September 2020. The second, for medical expenses under s16 of the SRC Act in proceedings numbered 2021/0997 and dated 19 February 2021.

5. Prior to filing his applications in the Tribunal, the applicant had attended and independent medical examination (“IME”) with Dr Martyn Ewer psychiatrist, on 12 March 2020. After the filing of the first application for review, the respondent determined it reasonable and necessary to obtain a further report from Dr Ewer for reasons including, the passage of time since that March 2020 examination, and that following the receipt of summonsed material, there was a need for Dr Ewer to consider that material and provide a further report.

6. By letter dated 22 December 2020 the respondent advised the applicant that an appointment had been made for an IME with Dr Ewer, on Wednesday 24 February 2021 at 11.00am. This was a Notice given pursuant to s57(1)(b) of the SRC Act. The applicant failed to attend the appointment. Two further appointments were made on 23 March 2021 and 6 May 2021 and s57(1)(b) Notices were sent to the applicant in respect of each appointment. The applicant failed to attend both those appointments.

7. In communications between the parties with respect to the applicant’s attendance at the proposed IME’s, the applicant raised various issues about the need for the IME. Those issues were numerous, and I will not repeat them all, but they included that the applicant did not regard the appointment as necessary, and he could not see the benefit in a re-examination by Dr Ewer. The applicant challenged the respondent’s power to issue the s57(1)(b) Notice given the matter was now before the Tribunal. Further it was not apparent to the applicant which power or function under s69 of the SRC Act the respondent purported to use when issuing each s57(1)(b) Notice. The respondent responded to the various issues raised. On 4 February 2021, the parties attended a telephone conference to discuss the applicant’s objections.

8. By letter dated 24 June 2021 the respondent provided a Notice of Intention to Suspend the applicants claims under s57(2) of the SRC Act, for his failure to attend the 6 May 2021 IME. The letter advised that the respondent was considering making a determination to suspend the applicant’s claims and that the applicant had failed to give a reasonable excuse for his non-attendance. The applicant was given the opportunity to respond to that Notice of Intention to Suspend, which he did.

9. The respondent considered the applicant’s response and by letter dated 21 July 2021 the respondent sent to the applicant the Notice as a consequence of his non-attendance at the IME with Dr Ewer on 6 May 2021. The Notice informed the applicant that should he not advise within 3 months of his willingness to attend a rescheduled medical examination the respondent would seek dismissal of his applications for review pursuant to s42A(5)(a) of the Administrative Appeals Tribunal Act (the “AAT Act”). That section relevantly reads:

   “(5) If an applicant for a review of a decision fails within a reasonable time:

   (a) to proceed with the application;

   …….

   the Tribunal may dismiss the application without proceeding to review the decision.”

10. Attachment B1 to the Notice was a statement of reasons for the decisions to suspend the applicants claims which referred to the previous communication between the parties and to issues raised by the applicant including that s57 of the SRC Act was a coercive power that infringed the applicant’s civil liberties; that it was not within the spirit of s2A of the AAT Act to obtain an IME report and that the requirement to attend a re-examination was unfair and unjust.

    ISSUES

11. Two issues arise in the matter. First, is the validity of the Notice and whether the applicant’s rights to continue proceedings are suspended pursuant to s57(2) of the SRC Act. Second, whether the summons to produce documents issued by the Tribunal Registry to the respondent and dated 7 October 2021 at a time when the claims for compensation were suspended, ought to be discharged.

12. The applicant maintains that the s 57(1)(b) Notice requiring him to attend the IMEs, and in particular requiring him to attend the IME on 6 May 2021, and the Notice were not valid and that once the Tribunal was seized with the applications the respondent was not empowered to issue the s 57(1)(b) Notice or the Notice, and that such power vested only in the Tribunal.

    OVERVIEW OF THE PARTIES’ SUBMISSIONS

    The applicant

13. The applicant provided written and oral submissions. The applicant’s submissions included that:

    ·He disputed the respondent’s submission that s57(1) of the SRC Act can be interpreted and exercised in the terms of the plain meaning of the section and in isolation of other sections of the SRC Act;

    ·Section 57(1) of the SRC Act must be read in the context of all other provisions of the SRC Act including s70, which only permits the respondent to exercise power in connection with the performance of any function it has under the SRC Act;

    ·The issuing of the Notice by the respondent is not an exercise of power in connection with the performance of the functions of the respondent under the SRC Act or any other Act[1];

    ·The Notice was illegal as were the various notices of IME examinations including the s 57(1)(b) Notice of examination for 6 May 2021;

    ·The Notice cannot apply where the s 57(1)(b) Notice was not lawfully issued;

    ·The respondent should have exercised its power under s57 of the SRC Act before the filing of the applications before the Tribunal. Once a valid application was before the Tribunal any power to issue a s57 Notice vested solely in the Tribunal and not the respondent. Section 43 of the AAT Act gives the Tribunal power to exercise all powers and discretions of the primary decision maker. Even though the Tribunal cannot review the decision under s57, it can exercise the power granted by the section; and

    ·The respondent failed to comply with its “Process for engaging in Briefing Medical Experts”, and that the Notice should only be issued to an applicant in the Tribunal when there are gaps in medical evidence or conflicting evidence, when the applicant developed a new or secondary condition, if there were concerns about the current medical evidence, if there were concerns about the circumstances of the claim, if there was a need to establish a link between employment and the claimed condition, or a link between employment and the issue in dispute. Further, the applicant submitted that before issuing the Notice an assessment must be made of the available medical evidence and the currency of any IME reports.[2]

    [1] See written submissions dated 5 October 2021, paragraphs 8-10 inclusive.

    [2] Paragraph 333 of the applicant’s written submissions dated 24 October 2021.

    The respondent

14. The respondent provided written and oral submissions. The respondent’s submissions included:

    ·The applicant’s rights to continue the proceedings are suspended pursuant to s57(2) of the SRC Act, because he failed without reasonable excuse to undergo an IME;

    ·The Tribunal does not have the power to review a suspension decision under s57 of the SRC Act. Jurisdiction is conferred on the Tribunal pursuant to s64 of the SRC Act to review only reviewable decisions under that Act. A reviewable decision is a decision made on review pursuant to s62 of the SRC Act. A reviewable decision includes a reconsideration of a determination defined in s60 of the SRC Act. The definition of a determination does not include a decision under s57 of the SRC Act;

    ·The Tribunal is empowered to determine jurisdictional issues including whether a claimant’s rights are suspended having regard to a decision made under s57(2) and including whether the jurisdictional facts in s57(1) have been satisfied;

    ·The applicant’s excuse for not attending the IME, namely that he subjectively believed that it was unlawful for the respondent to require him to undergo the examination, could not be regarded as a reasonable excuse for the purpose of s57(2) of the SRC Act; and

    ·The requirement to attend the IME under s57(1) of the SRC Act remained on foot, unchallenged by the applicant and undisturbed by a court of competent jurisdiction and should be regarded as an established fact for the purpose of s57(2) and the Notice.

    CONSIDERATION

15. The applicant’s refusal to attend the IMEs was underpinned by his subjective interpretation of the SRC Act, the AAT Act, and their interrelationship, which he said rendered both the s57(1)(b) Notice and the Notice unlawful. Further he could not see any benefit or need to attend the IME. These factors, he said, provided a reasonable excuse for his failure to attend the IME on 6 May 2021.

16. The applicant asserted that because a valid application was before the Tribunal the legislative scheme prevented the respondent from then performing its functions under the SRC Act including pursuant to s57 of that Act, and by operation of s43 of the AAT Act those powers and functions under s57(1) and (2) of the SRC Act were vested in the Tribunal.

17. It is therefore necessary to consider the legislative scheme as it relates to this matter.

    The Statutory Framework

18. The jurisdiction of the Tribunal to review certain decisions is dependent upon an enactment providing power to the Tribunal to do so. Part IV Division 1 of the AAT Act is headed “Applications for review of decisions” in which Division is found s25 and which relevantly reads:

    “(1) An enactment may provide that applications may be made to the Tribunal:

    (a) for review of decisions made in the exercise of powers conferred by that enactment; or

    (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

    ……

    (3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:

    (a) shall specify the person or persons to whose decisions the provision applies;

    (b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and

    (c) may specify conditions subject to which applications may be made.”

19. It is only those decisions nominated by the enactment that can be the subject of an application for review to the Tribunal. An enactment may nominate some, but not all decisions made pursuant to that enactment, for review by the Tribunal. That is the case with respect to the SRC Act.

20. The review hearing by the Tribunal is a hearing de novo. The powers of the Tribunal on review are found in Part IV Division 6 of the AAT Act which is headed “Tribunal’s decisions on review”. Section 43 is found within that Division and relevantly reads as follows:

    “(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

    (a) affirming the decision under review;

    (b) varying the decision under review; or

    (c) setting aside the decision under review and:

    (i) making a decision in substitution for the decision so set aside; or

    (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

    Tribunal must give reasons for its decision”

21. Hence, upon hearing the application for review, the Tribunal is given all the powers and discretions conferred on the original decision-maker, who made the decision that was the subject of the review. It is often said that the Tribunal Member stands in the shoes of the original decision-maker and hears the matter afresh, including such further or other evidence that may be placed before the Tribunal, that may not have been before the original decision maker. This section is directed solely to the power of the Tribunal when conducting a review of the reviewable decision. It does not extend to other roles and functions that may be performed under the enactment and in this matter, by the respondent under the SRC Act.

22. Section 64(1) of the SRC Act provides that applications may be made to the Tribunal for review of a reviewable decision. A reviewable decision is defined in s60 of the SRC Act as follows:

    “reviewable decision” means a decision made under subsection 38(4) or section 62.”

23. Subsection 38(4) of the SRC Act provides that the respondent will review a determination and may make a decision affirming revoking or varying the determination. A determination is defined in s60 as follows:

    “determination” means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.”

24. Subsection 62 of the SRC Act relevantly reads as follows:

    “(1) A determining authority may, on its own motion:

    (a) reconsider a determination made by it; or

    (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

    whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.”

25. The legislative scheme therefore provides that upon request, there shall be a reconsideration of the determination by a person delegated with the power to do so, and who was not the original decision maker, and thereafter an application for review may be brought before the Tribunal. 

26. As can be seen in the SRC Act, a determination made under s57 of the SRC Act is not included within the listed sections which can be reviewed by the Tribunal.

27. In Lees v Comcare [1999] FCA 753 the Full Court of the Federal Court of Australia considered the legislative scheme under the SRC Act (as it then was) and after referring to the various sections of the SRC Act summarised the legislative scheme at [39] as follows:

    “In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”

28. Lees v Comcare makes it very clear that the powers and discretions of the Tribunal under s43(1) “are powers for the purpose of reviewing the reviewable decision, not powers that may be exercised at large.” Those are “the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62.”

29. Hence s43 is directed solely to the power of the Tribunal when conducting a review of the reviewable decision and not to other roles and functions that may be performed under the enactment. Hence s69 and s70 of the SRC Act do not operate together with s43 of the AAT Act to give power to the Tribunal to perform the administrative functions under the SRC Act including the powers and directions in s57 of that act.

    The SRC Act and the jurisdiction of the Tribunal

30. The Full Court of the Federal Court of Australia in Australasian Postal Corporation v Forgie & Anor [2003] FCR 130, Black CJ and Merkel and Stone JJ in considering a matter involving a suspension pursuant to s37(7) of the SRC Act for refusal or failure, without reasonable excuse, to undertake the rehabilitation program, compared the wording of that suspension provision with s57(2) SRC Act. In referring to s57(2) the Full Court said at page 279 [72 – 73]:

    “This subsection is worded in the same way, and has the same effect in relation to a failure to attend a medical examination, as s 37(7) has in relation to the failure to undertake a rehabilitation program.

    ……

    ..s 37 is specified in the s 60(1) definition of ’determination’ as one of the sections under which there can be a determination. Section 57, however, is not listed in this way. It is excluded from the definition in s 60(1). Accordingly, although both sections have a similar structure, the presence of one and the absence of the other from the definition of ‘determination’ is a clear indication that the legislator intended them to be treated differently for the purposes of the availability of merits review before the Tribunal.”

1. The Tribunal does not have jurisdiction to review a decision of suspension made by the respondent pursuant to s57(2) of the SRC Act. However, as the respondent submitted, the Tribunal is empowered to determine jurisdictional issues. As the respondent submitted at [5] of its written submissions, that includes whether the jurisdictional facts in s57(1) of the SRC Act have been met, and whether a decision has been made by a relevant authority under s57(2).

   Jurisdictional issues

2. The applicant is an ’employee’ as defined by s5 of the SRC Act. The applicant is employed by a Commonwealth authority under the law of the Commonwealth. There is no dispute that the applicant has made valid claims for compensation before the Tribunal and that the legislative scheme relevantly applies in this matter.

3. Insofar as the applicant submits that, by filing a valid application in the AAT, the respondent was not thereafter permitted to perform the powers and functions under s57 of the SRC Act, that is plainly wrong and contrary to the legislative scheme. As I have said, s43 of the AAT Act is limited to the powers and discretions of the Tribunal for the purpose of the merits review and did not fetter the powers and discretions of the respondent in performing its administrative functions under the SRC Act including after the filing in the Tribunal a valid application for review.

4. Section 57(2) provides that the suspension operates in respect of the applicant’s rights to institute or continue any proceeding. By its wording, this subsection contemplates that an employee may refuse or fail without reasonable excuse to undergo an examination or obstruct an examination prior to the institution of proceedings before the Tribunal or while proceedings are continuing in the Tribunal.

5. There is no impediment in the respondent requesting the applicant attend an IME at a time when proceedings are before the Tribunal. There can good reason for that to occur including, for example, whether, given the passage of time, there has been a change in the medical condition, whether the employee has ceased to be incapacitated for work because of that medical condition, whether the condition has worsened, or whether having regard to further evidence a question may arise as to whether employment was the cause of the condition.

6. The applicant’s submission, that he was not sufficiently advised about the reason for the request for the IME, lacks merit, particularly having regard to the communication between the respondent and the applicant over the period of time when the three valid s 57(1)(b) Notices advising of the IME were sent to him. Albeit the applicant was not obliged to provide reasons, Annexure A to the respondent’s written submissions headed “Correspondence between the parties concerning the Applicant’s ‘reasonable excuse’ to not attend IME with Dr Ewer” contained 79 pages of communications between the parties from 22 December 2020 to 16 July 2021. In argument the respondent referred the Tribunal to the letter to the applicant dated 18 February 2021 (R6) being a direction to attend the medical examination rescheduled from 23 March 2021. Under heading “Reasons Comcare requires you to attend the IME” the respondent provided its reasons in a nine-dot point explanation.

7. The respondent submits, and I respectfully agree, that the applicant’s subjective belief alone as to the unlawfulness of a notice to undergo an IME, cannot amount to a reasonable excuse for the purpose of s57(2) of the SRC Act, but whether or not the applicant had a reasonable excuse was a matter for a merits review which was not within the power of the Tribunal.

8. The jurisdictional question for the Tribunal is whether a lawful process was undertaken by the respondent in the issuing of the s57(1)(b) Notice to attend the IME on 6 May 2021 and that the power to issue the Notice consequent upon his failure to attend the 6 May 2021 IME was properly enlivened.

9. The applicant’s assertion that the three s 57(1)(b) Notices advising him of the IME’s were unlawful has no legal foundation. If the applicant wished to ventilate such an argument the appropriate course would have been to bring an application before a court of competent jurisdiction seeking judicial review and appropriate orders. He failed to do so.

10. The s 57(1)(b) Notice to attend the IME on 6 May 2021 was a lawful notice. The applicant failed to attend the medical appointment, and, as a consequence, the respondent’s discretion to issue the Notice was enlivened and lawfully made.

    The summons to produce documents

11. As at the date that the applicant applied for, and the Tribunal Registry issued the summons for the production of documents, the applicant’s rights to institute or continue any proceedings under the AAT Act in relation to both claims for compensation were suspended.

12. Hence, that application, brought by the applicant, was a continuation of the suspended claims for compensation before the Tribunal, which were suspended by virtue of the Notice which was valid and lawful.

    CONCLUSION

13. The s 57(1)(b) Notice to the applicant dated 6 April 2021 directing him to attend an IME on Thursday, 6 May 2021 at 11:30am with Dr Martyn Ewer was a valid and lawful notice. The applicant failed to attend the medical appointment and as a consequence the issuing of the Notice of suspension, was properly within the discretion of the respondent and validly and lawfully made.

14. The summons issued by the Tribunal Registry dated 7 October 2021 was issued at a time that any proceedings under the AAT Act were suspended. It is appropriate that the summons be set aside.

    DECISION

15. The applicant’s rights to continue with the claims for compensation are suspended pursuant to s 57(2) of the SRC Act, in consequence of the Notice dated 21 July 2021.

16. The summons for production of documents issued to the respondent dated 7 October 2021 is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

..........................[Sgnd].............................

Legal Administrative Assistant

Dated: 16 February 2022

Dates of hearing:	12 November 2021 & 17 December 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Peter Woulfe, Blackburn Chambers