Kelleher v Mortimer Products Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kelleher v Mortimer Products Pty Ltd [2024] NSWPIC 32
APPLICANT:	Matthew Kelleher
RESPONDENT:	Mortimer Products Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 in respect of accepted psychological injury; respondent sought Directions for Production of clinical records of treatment provider in respect of pre-existing psychological condition, to be included in documents to be provided to Medical Assessor in determination of whole person impairment; applicant objected, including on grounds that the application for Directions for Production was a ‘fishing expedition’ and that it was prohibited by Rule 47(1)(a)(iii) of the Personal Injury Commission Rules 2021 (Rules); Held – application for Directions for Production did not constitute a ‘fishing expedition’; not satisfied that a special case exists for the issue of the Directions pursuant to Rule 47(2)(a)(iii) of the Rules; application for Directions for Production refused.
DETERMINATIONS MADE:	The Commission determines: 1. The application by the respondent for the issuing of directions for production on: a. Dr Robyn Haig, and b. Macarthur Square Medical and Dental Centre, is refused. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 8 March 2021 Body parts: psychological and psychiatric Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and attachments, and (b) the Reply to the Application to Resolve a Dispute and attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Matthew Kelleher (the applicant) was employed by Mortimer Products Pty Ltd (the respondent) as a leading hand technical support and sheetmetal tank fabricator.
On or about 28 May 2021, the applicant made a claim against the respondent in respect of psychological injury and injury to his lower back arising following verbal abuse and physical assault during his employment on 8 March 2021.
On or about 9 June 2023, the applicant served on the respondent a claim for permanent impairment compensation in the sum of $50,730, calculated on the basis of 19% whole person impairment (WPI), based on a report of Dr Rastogi dated 4 May 2023.
By letter dated 22 June 2023, the respondent’s solicitor made a request for further and better particulars which requested the names of all treatment providers (including all specialists, hospitals and general practitioners) that the applicant attended from the period from
1 January 2017 to date. The letter attached an Authority to Release Documents and Information for the applicant to sign.
By letter dated 14 July 2023, the applicant’s solicitor responded to the request for further and better particulars. It stated:
“We are instructed to respond as follows:-
1....
2.Our client has obtained treatment from the following
a.Dr Blagjoe Kuljic at Dr Kuljic Consulting Rooms
b.Dr Yusuf Assem at Myhealth Macarthur Square Medical Centre
c.Dr Rene Delimanis at Southern Cross Counselling and Psychological Services
Our client advises that prior to his work injury he did not have a regular doctor and he is unable to recall the details of the medical centres he attended upon.
3.We attach the signed authorities.”
By notice dated 2 November 2023, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer stated that it accepted that the applicant sustained a psychological injury on 8 March 2021. It noted that the applicant had a prior psychological history and that produced records showed that the applicant was treated between 2016 and in or about 2018 by Dr Robyn Haig, psychiatrist, who diagnosed adult attention-deficit/hyperactivity disorder (ADHD) and who recorded a history of an episode of depression in 2016. Based on an opinion by the respondent’s independent medical expert, Dr Bisht, the insurer declined liability for permanent impairment compensation on grounds that the accepted psychological injury has not resulted in at least 15% permanent impairment as required by s 65A of the Workers Compensation Act 1987 (the 1987 Act) and because, applying s 65A(1) of the 1987 Act, it believes that permanent impairment results from a secondary psychological injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant commenced the present proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (Application) filed on
12 December 2023. The applicant seeks permanent impairment compensation in the sum of $50,730, calculated on the basis of 19% whole person impairment (WPI).
By a Reply to Application to Resolve a Dispute (Reply) filed on 11 January 2023, the respondent requested that the proceedings be listed for a preliminary conference in order to seek leave to issue Directions for Production upon the applicant’s pre-injury treating doctors and specialists.
At a preliminary conference conducted by me on 23 January 2024, the applicant was represented by Ms Jessica Seymour of Firths – The Compensation Lawyers and the respondent was represented by Mr Scott Murray of Lee Legal Group. On behalf of the respondent, Mr Murray sought Directions for Production to be issued for clinical records of
Dr Robin Haig and Macarthur Square Medical and Dental Centre. On behalf of the applicant, Ms Seymor objected to issue of Directions for Production.
The parties agreed that injury is not disputed and that it is appropriate to remit the matter to the President to be referred to a Medical Assessor for determination of WPI. The parties agreed that it is necessary to determine the interlocutory issue in relation to the respondent’s request for issue of Directions for Production before that occurs.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following interlocutory issues require determination:
(a) the objection to the Direction for Production issued to Dr Robin Haig, and
(b) the objection to the Direction for Production issued to Myhealth Macarthur Square Medical Centre.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
There was no oral evidence.
Given the limited issue that requires determination, it is unnecessary that I discuss the evidence in detail and I will refer only to some evidence which is particularly pertinent.

SUBMISSIONS

Respondent’s submissions

In summary, the respondent submitted that:
(a)    the claim for permanent impairment compensation was made on 9 June 2023;
(b)    the respondent’s solicitor made a request for further and better particulars on
22 June 2023, which included a request for details of the applicant’s treating doctors and specialists for the period 1 January 2017 onwards;
(c)    on 14 July 2023, the applicant’s solicitor responded and identified three treating doctors, none of whom were pre-injury treating doctors. The applicant’s solicitor also stated that advises that prior to his work injury he did not have a regular doctor and the applicant was unable to recall the details of the medical centres he attended upon prior to the injury;
(d)    subsequently, the respondent came into possession of a report of Dr Robin Haig, who was the applicant’s treating psychiatrist from 13 November 2018, which contains a relatively recent pre-injury psychological history which includes reference to problems throughout adulthood, with anxiety, and references to a diagnosis of ADHD going back to childhood, and
(e)    issue of the Directions for Production would not result in any prejudice to the applicant and, further, it would further assist the Medical Assessor in forming an appropriate opinion.

Applicant’s submissions

In summary, the applicant submitted that:
(a)    the applicant objects to the Directions for Production;
(b)    the applicant provided the respondent with authorities in July 2023;
(c)    there were records contained in the respondent’s claim file that had various references to Dr Haig and which listed him as a treatment for the applicant;
(d)    the respondent had the ability to use the authorities to request that material but failed to do so;
(e)    an email dated 13 July 2023 that the applicant’s solicitors received from the respondent’s solicitors contained a list of treatment providers, which included
Dr Haig;
(f)    Dr Haig was within the knowledge of the respondent at that time;
(g)    the report of Dr Bisht, the respondent’s independent medical expert, dated
10 October 2023 contained references to treatment that had been provided to the applicant by Dr Haig in relation to pre-existing issues. At that time Dr Haig’s role in providing pre-injury psychiatric treatment to the applicant, was clearly within the respondent’s knowledge;
(h)    the applicant has not hidden the pre-existing issues which he suffered and they were disclosed to and taken into consideration by the applicant’s treating doctors and the independent medical experts;
(i)    if the respondent considered that the applicant’s response to the request for further and better particulars was insufficient, the respondent could have sought further information but it did not do so;
(j) Rule 47(2)(a)(iii) of the Personal Injury Commission Rules 2021 (the Rules) provides that directions for production must not be issued in workers compensation proceedings if the party who requested the issue of the direction is entitled to be provided with the documents, or copies of the documents under an authority a worker has provided to the employer or insurer to obtain documents from a third party (unless the third party has failed to comply with the request, or special reasons prevented the employer or insurer from acting on the authority);
(k)    the respondent has known at least since December 2022, that Dr Haig was a treatment provider to the applicant, and that has been disclosed to the respondent’s own independent medical expert and has been referenced in the respondent’s own correspondence. In December 2022, the applicant’s solicitors received a copy of the claim documents from the respondent’s insurer which included references to Dr Haig;
(l)    Rule 47 of the Rules prohibits issue of the Directions for Production because signed authorities were provided by the applicant and it was previously within the respondent’s ability to seek the material now sought and the respondent had adequate time to have done so before the present request for Directions for Production;
(m)     the applicant would be prejudiced by issue of the Directions for Production by delay to finalisation of his claim, and
(n)    the Directions for Production should be refused and the proceedings should be referred to a Medical Assessor.

Respondent’s submissions in reply

In summary, the respondent submitted in reply that:
(a)    there was a reference to Dr Haig in the insurer’s claim file, which the insurer had from December 2022;
(b)    however, it is not just incumbent on the respondent to trawl through the claim file to identify treating specialists. It is also incumbent on the applicant to respond to a request for further and better particulars and to access the claim file to provide a full response;
(c)    the applicant has “cherry-picked” documents from the clinical records of the Medical Centre and it should produce to the respondent the entire of the documents that it has;
(d)    issue of the Notices for Production would result in a relatively insignificant delay to finalisation of the applicant’s claim, and
(e)    the Directions for Production should be granted. Prior to referral of the proceedings should be referred to a Medical Assessor, both parties should be given an opportunity to view the documents produced and to file any relevant Application to Admit Late Documents.

CONSIDERATION

The respondent sought Directions for Production to be issued for clinical records of Dr Robin Haig and Macarthur Square Medical and Dental Centre.
Section 49 of the Personal Injury Commission Act 2020 (the PIC Act) sets out the Commission’s power to issue Directions for Production. It states:
“49    Power of Commission to require information
(1)     The Commission may give a direction in writing to any person (whether or not a party to proceedings before the Commission) requiring the person—
(a)to produce, at a time and place specified in the direction, specified documents in the possession of the person, or
(b)to provide specified information within a time specified in the direction that the Commission considers relevant to the proceedings, or
(c)to give within a time specified in the direction any specified consent, authority or direction that the Commission considers necessary or desirable for the purpose of facilitating the provision by another person of documents or information pursuant to a direction under subsection (2).
(2)     The direction may require the documents to be produced or the information to be provided—
(a)to the Commission or to another party to proceedings before the Commission, in the case of a direction given to a party to the proceedings, or
(b)to the Commission in the case of a direction given to a person who is not a party to proceedings before the Commission.
(3)     A person must not, without reasonable excuse, fail to comply with a direction given to the person.
Maximum penalty—50 penalty units.
(4)     If a person does not, without reasonable excuse, produce a document or provide information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Commission or a court have the document or information admitted in the proceedings.
(5)     The Commission may exercise powers under this section at the request of a party to proceedings before the Commission or of the Commission’s own motion.
(6)     A Division Head of a Commission Division or the principal registrar has and may exercise any power of the Commission under this section.
(7)     The regulations or the Commission rules may make provision for or with respect to any of the following matters—
(a)exempting specified kinds of documents or information from the operation of this section,
(b)specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,
(c)specifying cases and circumstances in which the Commission is not to exercise the Commission’s powers under this section.”
Division 5.3 of the Rules sets out the definitions, powers and the process by which Directions for Production are dealt with in proceedings.
Rule 46 of the Rules states:
“46 Request for direction for production
(1) A party to proceedings may request that the non-presidential member to whom proceedings are referred order the issue of a direction under section 49 of the PIC Act for the production of documents by a person who is not a party to the proceedings.
(2) A proposed direction for production must include a proposed first access order.”
Rule 47 of the Rules states:
“47    Direction for production
(1)     A non-presidential member to whom proceedings are referred may order or refuse to order the issue of a direction for production requested under rule 46(1)—
(a)at a teleconference in the proceedings, or
(b)in a special case and for the avoidance of injustice, subsequently.
(2)     However, a direction for production of documents must not be issued if the party who requested the issue of the direction is entitled to be provided with the documents, or copies of the documents, under—
(a)in workers compensation proceedings—
(i)an obligation imposed on a worker, employer or insurer in relation to a claim, whether on request or otherwise, under the workers compensation legislation, or
(ii)an obligation under Part 7 of the 1987 Act, or any regulation, guideline, contract or arrangement made under the Part, if the documents are in the possession or control of the Nominal Insurer or an agent of the Nominal Insurer, or
(iii)an authority a worker has provided to the employer or insurer to obtain documents from a third party, unless the third party has failed to comply with the request, or special reasons prevented the employer or insurer from acting on the authority, or
(b)...
(3)     In deciding whether to order the issue of the direction for production, the non-presidential member may do any of the following—
(a)determine an objection by a party,
(b)direct the times for service of the direction and production by the producer,
(c)direct the making of access orders, including a first access order,
(d)provide for another matter the member thinks fit.
(4)     If the non-presidential member orders the issue of a direction for production—
(a)the party who requested the issue of the direction must prepare the direction in accordance with the terms of the order and deliver the direction to the Registry, and
(b)the Commission must issue the direction.
(5)     In this rule—
Nominal Insurer has the same meaning as in the 1987 Act.”

Fishing expedition

The applicant submitted that the Directions for Production constituted a “fishing expedition”.
Case law in relation to what constitutes a “fishing expedition” was set out by Member Homan in Idris Dayib Kahin v Uber Australia Pty Ltd [2020] NSWWCC 118.
A submission that a Direction for Production is a fishing expedition is in effect asserting that the documents sought have no apparent relevance to the proceedings. As noted in Automotive Dealer Administration Services Pty Ltd v Kulik & Ors:[1]
“That term is so frequently used that it tends to be forgotten that it means making enquiries of something not pleaded in the hope that it can then be alleged.”
[1] [2010] VSC 293, at [21].
In relation to fishing, in Commissioner for Railways v Small,[2] Jordan C J stated:
“A party is no more entitled to use a subpoena duces tucem than he is a summons for interrogatories, for the purpose of ‘fishing’, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all”.
[2] (1938) 38 SR (NSW) 564, Jordan C J at 575.
In Trade Practices Commission v Arnotts Ltd,[3] Beaumont J posed the following questions:
“Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts [the issuer]. (2) Is the subpoena seriously and unfairly burdensome or prejudicial?”
[3] [1989] FCA 248, at [44].
In National Employers’ Mutual General Assoc Ltd v Waind and Hill,[4] Moffitt P (Hutley and Glass JJA agreeing) said:
“The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.”
[4] (1978) 1 NSWLR 377, at (384).

The Full Federal Court in Federal Court in Wong v Sklavos[5] said:
“Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: …. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: …. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative … or that the material sought is reasonably likely to add in some way to the relevant evidence in the case … or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: …”
[5] [2014] FCAFC 120, at [12].
In the present proceedings, the key issue in dispute in this matter is the degree of permanent impairment suffered by the applicant as a result of psychological injury.
Principles of assessment are set out in Part 2 of Chapter 1 of the SIRA Guidelines for the Evaluation of Permanent Impairment (Guidelines). Paragraph 11.10 of Chapter 11 of the Guidelines states:
“Pre-existing impairment
11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
It is common ground that both Dr Haig and the Macarthur Square Medical and Dental Centre treated the applicant for a pre-injury psychological condition. The documents may reveal information which is relevant to assessment of the applicant’s pre-level of functioning. Pursuant to paragraph 11.10 of Chapter 11 of the Guidelines, that is a factor which is required to be considered by a Medical Assessor in assessing the applicant’s WPI.
On that basis and having regard to the evidence as a whole, I am satisfied that the clinical records of Dr Haig and the Macarthur Square Medical and Dental Centre would provide detail which is relevant to determination of the real issue in dispute in this matter. Accordingly, I do not accept the applicant’s submission that the Directions for Production constitute a “fishing expedition”.

Rule 47 of the Rules

The applicant also submitted that Rule 47 of the Rules prohibits issue of the Directions for Production because signed authorities were provided by the applicant and it was previously within the respondent’s ability to seek the material now sought and the respondent had adequate time to have done so before the present request for Directions for Production.
Rule 47 of the Rules states:
“47    Direction for production
(1)     A non-presidential member to whom proceedings are referred may order or refuse to order the issue of a direction for production requested under rule 46(1)—
(a)at a teleconference in the proceedings, or
(b)in a special case and for the avoidance of injustice, subsequently.
(2)     However, a direction for production of documents must not be issued if the party who requested the issue of the direction is entitled to be provided with the documents, or copies of the documents, under—
(a)in workers compensation proceedings—
(i)an obligation imposed on a worker, employer or insurer in relation to a claim, whether on request or otherwise, under the workers compensation legislation, or
(ii)an obligation under Part 7 of the 1987 Act, or any regulation, guideline, contract or arrangement made under the Part, if the documents are in the possession or control of the Nominal Insurer or an agent of the Nominal Insurer, or
(iii)an authority a worker has provided to the employer or insurer to obtain documents from a third party, unless the third party has failed to comply with the request, or special reasons prevented the employer or insurer from acting on the authority, or
(b)...
(3)     In deciding whether to order the issue of the direction for production, the non-presidential member may do any of the following—
(a)determine an objection by a party,
(b)direct the times for service of the direction and production by the producer,
(c)direct the making of access orders, including a first access order,
(d)provide for another matter the member thinks fit.
(4)     If the non-presidential member orders the issue of a direction for production—
(a)the party who requested the issue of the direction must prepare the direction in accordance with the terms of the order and deliver the direction to the Registry, and
(b)the Commission must issue the direction.
(5)     In this rule—
Nominal Insurer has the same meaning as in the 1987 Act.”
Rule 47(2)(a)(iii) of the Rules provides that directions for production must not be issued in workers compensation proceedings if the party who requested the issue of the direction is entitled to be provided with the documents, or copies of the documents under an authority a worker has provided to the employer or insurer to obtain documents from a third party (unless the third party has failed to comply with the request, or special reasons prevented the employer or insurer from acting on the authority). Rule 47(2) of the Rules is expressed in mandatory terms.
The respondent has not disputed that the applicant provided an authority to the insurer to obtain documents from a third party.
In the circumstances, I am required to consider whether special reasons prevented the employer or insurer from acting on the authority.
The applicant submits that the respondent has known, at least since December 2022, that
Dr Haig was a treatment provider to the applicant, and that has been disclosed to the respondent’s own independent medical expert and has been referenced in the respondent’s own correspondence. This was not disputed by the respondent.
I note that in his report dated 10 October 2023, the respondent’s independent medical expert, Dr Yajuvendra Bisht, psychiatrist, referred to the applicant’s pre-injury treatment by Dr Haig.
Further, I note that in the notice dated 2 November 2023, issued pursuant to s 78 of the 1998 Act, the respondent’s insurer noted that the applicant had a prior psychological history and that produced records showed that the applicant was treated between 2016 and in or about 2018 by Dr Robyn Haig, psychiatrist, who diagnosed ADHD and who recorded a history of an episode of depression in 2016.
Having regard to the evidence, I accept that the respondent has known at least since
Dr Bisht’s report dated 10 October 2023, and likely some time earlier and possibly as early as December 2022, that Dr Haig was a treatment provider to the applicant. It is not disputed that in December 2022, the applicant’s solicitors received a copy of the claim documents from the respondent’s insurer which included references to Dr Haig.
The respondent has not disputed that references to Dr Robin Haig and Macarthur Square Medical and Dental Centre as previous treatment providers was included in material that was within the possession of the insurer.
However, the respondent submits that Rule 47(2) of the Rules should not preclude it from obtaining the Directions for Production sought because the applicant’s letter dated
14 July 2023 failed to identify Dr Robin Haig and Macarthur Square Medical and Dental Centre in response to the respondent’s request for further and better particulars. In that letter the applicant’s solicitor stated that “Our client advises that prior to his work injury he did not have a regular doctor and he is unable to recall the details of the medical centres he attended upon”. The respondent submits that, in the circumstances, it should not have been expected to identify the names of Dr Robin Haig and Macarthur Square Medical and Dental Centre from the documents within its possession.
Further, the respondent submitted that the applicant “cherry-picked” documents which it provided to the applicant from the clinical records that are now sought by way of Directions for Production. However, I note that it was within the respondent’s power to obtain the entire of the relevant clinical records pursuant to the authorities that the applicant had given.
Having regard to the above matters and the evidence as a whole, I am not persuaded that the respondent has demonstrated that a special case exists for the issue of the Directions for Production sought. It is apparent from the evidence that the respondent, through the insurer, was aware that the applicant was treated by Dr Haig and Macarthur Square Medical and Dental Centre in relation to a pre-existing psychological condition and that Dr Haig relied on that information in making his assessment of WPI. Further, I am not satisfied that the issue of the Directions for Production is necessary for the avoidance of justice.
Pursuant to the s 42 of the PIC Act, I am required to give effect to the guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Having regard to the nature of the claim and the evidence as a whole that is before the Commission, I am satisfied that it would be contrary to the guiding principle to allow the Directions for Production that are sought by the respondent.
On that basis and pursuant to Rules 47(2)(a)(iii) and 47(3) of the Rules, I determine to refuse to issue Directions for Production for the clinical records of Dr Haig and the McArthur Square Medical and Dental Centre.

REFERRAL TO MEDICAL ASSESSOR

As the parties have agreed, it is appropriate in the circumstances that I remit the matter to the President to be referred to a Medical Assessor for assessment of permanent impairment on the basis of evidence that is presently before the Commission.

SUMMARY

Accordingly, I determine that the application by the respondent for the issuing of directions for production on:
a. Dr Robyn Haig, and
b. Macarthur Square Medical and Dental Centre,
is refused.
The matter is to be remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:                  8 March 2021
Body parts:  psychological and psychiatric
Method:  whole person impairment.
The materials to be referred to the Medical Assessor are to include:
(a) the Application and attachments, and
(b) the Reply and attachments.

[2024] NSWPIC 32

29 January 2024