Jelley and Ramsay Health Care Australia Pty Ltd (Compensation)
[2024] AATA 3514
•27 September 2024
Jelley and Ramsay Health Care Australia Pty Ltd (Compensation) [2024] AATA 3514 (27 September 2024)
Division:GENERAL DIVISION
File Number(s): 2024/4232
Re:Stephen Jelley
APPLICANT
AndRamsay Health Care Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Member J Papalia
Date:27 September 2024
Date of written reasons: 1 October 2024
Place:Perth
The Tribunal orders that the Respondent have leave to inspect documents produced by Candlewood Medical Centre in relation to the proceedings. The Applicant’s objection to that inspection dated 18 September 2024 is disallowed.
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Member
CATCHWORDS
PRACTICE AND PROCEDURE – Summons to produce documents – objection to inspection by issuing party – objection disallowed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 40A(1)(b), 40B(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5B, 14, 16, 19, 64
CASES
Re Bui and Australian Postal Corporation [2016] AATA 135 at [7]-[23]
Re Nikaghanri and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3311 at [10]-[15]
REASONS FOR DECISION
Member J Papalia
1 October 2024
BACKGROUND
On 27 September 2024, the Tribunal dismissed an objection made by the Applicant to the inspection by the Respondent of identified aspects of a 45-page Patient Health Summary dated 17 August 2024, which had been produced to the Tribunal under summons by the Candlewood Medical Centre in Joondalup. The Applicant requested that the Tribunal provide him with written reasons for that decision on 30 September 2024. These are those written reasons.
The Applicant substantively seeks review of an internal review decision dated 24 May 2024 made by QBE Self Insurance Services for and on behalf of the Respondent, to the effect that the Applicant had no entitlement to compensation under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
The Respondent is a self-insured licensee under the SRC Act.
The Applicant relevantly seeks compensation in respect of ‘Chronic Regional Pain Syndrome, Neuropathic Pain and Carpel Tunnel Syndrome’ which he claims are a direct result of a ‘Distal biceps tendon strain’ sustained in his employment as a hygiene orderly at Joondalup Health Campus on 12 January 2023, when he was picking up a piece of cardboard to put it in the bin on the Renal Ward.[1]
[1] See T-documents, pp 18, [3], 30-31, 35, 39.
On 28 April 2024, the Respondent accepted that it was liable to pay compensation in respect of the distal biceps tendon sprain.[2]
[2] See T-documents, pp 54-60.
The internal reviewer accepted that the Applicant suffered from the claimed ailments but was not satisfied that they were contributed to, to a significant degree, by the Applicant’s employment with the Respondent for the purposes of s 5B(2) of the SRC Act.
On 28 March 2023 and 4 April 2023, the Applicant was relevantly referred by his general practitioner, Dr Oo at Candlewood Medical Centre, for an ultrasound and to an orthopaedic surgeon – Mr Lim.[3] Mr Lim produced a series of reports and recommended surgery.
[3] See T-documents, pp 34ff.
The Respondent sought an external opinion from a consultant orthopaedic surgeon, Dr Kelman.[4] They also sought that Candlewood Medical Centre produce the Applicant’s clinical records; however, it appears that this was not forthcoming.[5]
[4] See T-documents, pp 75ff, 93, 100ff.
[5] See T-documents, p 90.
Dr Kelman ultimately disagreed with Dr Lim’s assessment that surgery was the appropriate treatment for the distal biceps tendon sprain, and the Respondent accordingly did not consider itself liable for that treatment.[6] This was affirmed on internal review.[7]
[6] See T-documents, p 115.
[7] See T-documents, pp 120-128.
However, the Respondent ultimately reconsidered its liability for the claimed ailments on 28 March 2024, including in respect of the reported ongoing pain and having regard to a series of reports from a pain specialist, Professor Visser.[8] This was the decision that was ultimately affirmed by the reviewable decision that is before the Tribunal.
[8] See T-documents, pp 167-173.
The Applicant sought review under s 64(1) of the SRC Act on 24 June 2024.[9]
[9] See T-documents, pp 7ff.
On 9 August 2024, an authorised officer of the Tribunal issued a summons to produce documents to the Candlewood Medical Centre under s 40A(1)(b) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The summons was issued at the request of the Respondent and sought that the Medical Centre produce their files in respect of the Applicant to the Tribunal.
On 19 August 2024, the Medical Centre produced the Patient Health Summary to the Tribunal by email. The Medical Centre did not object to inspection of the documents produced.
On 12 September 2024, Member Gallagher made orders granting the parties leave to inspect the material produced by the Medical Centre under s 40B(1) of the AAT Act. The orders provided for staggered inspection by the Applicant, followed by the Respondent and allowed for any potential objections to be dealt with on the papers.
On 18 September 2024, the Applicant objected, in writing, to the respondent being granted leave to inspect significant tranches of the Patient Health Summary (pp 1-15, 16 in part, 35-43). He submitted that:
All the above documents contain my previous personal medical history which does not have any relevance to the current case and is private in nature. The current case is dealing with the matter from 12 January 2023. This is the date my injury occurred at work. Candlewood Medical Centre have just sent through all my patient health summary history which contains all my medical history going back to 2006. This is not relevant to the current case.
On 23 September 2024, the Respondent provided a written submission in support of their request for leave to inspect the documents. They submitted that the medical records are “relevant to the Tribunal’s purposes of determining causation in accordance with section 5B of the SRC Act and [that accordingly they] seek access to the full documents returned in answer to [the] summons.”
The objection was then referred to me in chambers for determination on 27 September 2024.
ISSUE
The issue before the Tribunal is whether it should exercise its power under s 40B(1) of the AAT Act to grant leave to the Respondent to inspect the documents produced under summons.
DISCUSSION
In this matter, the substantive issue is whether the Respondent is liable to pay compensation under the SRC Act. The relevant legislative provisions were summarised by Deputy President Forgie in Re Bui and Australian Postal Corporation [2016] AATA 135 at [7]-[23].
In Re Nikaghanri and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3311, I summarised the principles governing inspection orders under s 40B of the AAT Act (at [10]-[15]).
The Tribunal will be required to substantively assess whether the Applicant’s claimed ailments (or an aggravation of them) was contributed to, to a significant degree, by the Applicant’s employment. This must include consideration of the factors set out in s 5B(2) of the SRC Act, including whether the Applicant had any predisposition to the particular ailments in question. The Tribunal will, of necessity, review the Applicant’s entire medical history in making that assessment. Moreover, each of the medical experts that are to be called by the parties will be expected to have done so.
DECISION
On that basis and having regard to the contents of the documents produced by the Medical Centre, I accept that the documents have apparent relevance to the Tribunal’s assessment of whether the Respondent is liable to pay compensation under the SRC Act. Accordingly, I dismissed the Applicant’s objection.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Member J Papalia.
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Associate
Dated: 1 October 2024
Date of hearing: On the papers Applicant: In person Solicitors for the Respondent: Ms M Broughton, McInnes Wilson Lawyers
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