Kermode and Military Rehabilitation and Compensation Commission
[2009] AATA 904
•3 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0947
VETERANS' APPEALS DIVISION ) Re NICHOLAS KERMODE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date3 November 2009
PlaceAdelaide
Decision For reasons given orally, the applicant, on the evidence before the tribunal, does not have a reasonable excuse to refuse to undergo the proposed examination by Professor Goldney. Accordingly, if he refuses to undergo that assessment then in consequence of s 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the proceedings in this tribunal will be suspended until the such examination takes place, and also by force of s 57 (if the respondent decides that any such refusal is without a reasonable excuse), the applicant’s rights to compensation under that Act will be suspended until the examination takes place.
D G Jarvis
(signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – requirement to attend psychiatric examination – applicant claims that attendance would be detrimental to his health – held that applicant did not have a reasonable excuse for refusing to attend examination.
PRACTICE AND PROCEDURE – Jurisdiction – held that tribunal has power to determine whether applicant has reasonable excuse for refusing to attend medical examination in order to determine whether proceedings in tribunal are stayed.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 57(2)
McKinnon v The Commonwealth (unreported, FCA, No. 518 of 1996; 19 November 1998)
Re Steele and Pacific National Pty Limited [2009] AATA 321
REASONS FOR ORAL DECISION
3 November 2009 Deputy President D G Jarvis 1. The application before me has arisen because the respondent has arranged for an appointment for the applicant, Nicholas Kermode, to be examined by a psychiatrist, Professor Goldney on 1 August 2009, and the applicant is unwilling to attend that examination.
2. On being notified of an appointment with Professor Goldney for 1 August 2009, Mr Kermode sent a letter dated 18 May 2009 to the Tribunal. In that letter he referred to the number of earlier consultations he had had with other psychiatrists, and said that the constant “over assessments”, and re-living the event were not in his medical interests. He said that he suffers after numerous consultations to such a degree that it denigrates from his health, and that he did not wish to see Professor Goldney for a further medical assessment as had been requested.
3. In a subsequent letter of 16 June 2009 Mr Kermode’s representative, a Mr Zaplatynskyj, said that Mr Kermode would not be seeing Professor Goldney and that that was based on medical reasoning. Mr Zaplatynskyj referred to an earlier report of Mr Kermode’s treating psychiatrist, Dr Michelle Atchison, dated 30 June 2006. In that report Dr Atchison had reported that Mr Kermode had quite frequent episodes of suicidal thinking especially under stress, and at these times needs considerable emotional and practical support from his wife.
4. I interpret those two letters in combination as constituting a refusal by Mr Kermode to submit to the assessment by Professor Goldney.
5. Following that exchange of correspondence the appointment that had been arranged for 1 August 2009 did not proceed, and a further appointment was arranged for 24 November 2009. Mr Kermode is, as I understand it, still unwilling to attend that appointment.
6. The proceedings before me this morning involve my determining whether Mr Kermode has a reasonable excuse for refusing to keep the appointment within the meaning of s 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Section 57(2) of the Act provides as follows:
“(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.”
7. It has been held that a decision by Comcare to suspend an employee’s rights to compensation by virtue of a failure, without reasonable excuse, to attend a medical examination is not reviewable by this tribunal. Nevertheless, it is competent for this tribunal to determine whether the applicant’s proceedings are suspended by virtue of s 57(2), in order to determine the tribunal’s jurisdiction to proceed to determine the proceedings for review instituted by applicant: Re Steele and Pacific National Pty Limited [2009] AATA 321 at [12], and the cases there cited.
8. Dr Atchison provided a report dated 3 August 2009 in relation to the effect on Mr Kermode of the proposed appointment with Professor Goldney. That report recounted the basis of Mr Kermode’s concern about the proposed examination by Professor Goldney, and recorded that Mr Kermode was quite upset that he was not allowed to have his wife attend the earlier interview with Professor Goldney that had taken place in 2006. Dr Atchison said in that report that despite noting that Mr Kermode would be very anxious and upset about having to be reviewed again by Professor Goldney “I cannot say that it would certainly precipitate suicidal thinking or behaviour. I would note, however, that there is a probability that it could.” That report was drawn to my attention at an earlier directions hearing in this matter, and reference was made to the inherent ambiguity in that aspect in the report. It was suggested that the matter should be referred back to Dr Atchison, and that her opinion could be clarified if necessary by her being available to give further evidence.
9. Dr Atchison gave oral evidence today by telephone, and in addition before the hearing I was advised of measures that were proposed by the respondent to, in effect, mitigate the risk of harm to Mr Kermode if the appointment with Professor Goldney proceeded. The matter was also raised as I understand it with Professor Goldney, and I was informed that Professor Goldney had indicated that he was not prepared for Mrs Kermode to be present while he interviewed Mr Kermode, but he was prepared for Mr Zaplatynskyj to be present on the understanding that Mr Zaplatynskyj would remain silent through the interview process. Professor Goldney also indicated that he would interview Mrs Kermode separately and in the presence of Mr Kermode. It further emerged from the evidence this morning from Dr Atchison that she is prepared to assist Mr Kermode to prepare for any appointment with Professor Goldney in her capacity as his treating psychiatrist, and she is also prepared to assist him and provide any necessary treatment immediately after any such assessment by Professor Goldney.
10. It also appears from the material before me that Professor Goldney has been made aware of the concerns that have been raised on behalf of Mr Kermode, and as an experienced psychiatrist who has had extensive experience both as a clinician and as a psychiatrist providing medico-legal reports he is in a position to conduct the interview in a way that will minimise the risk of harm to Mr Kermode.
11. In cases like this the question of whether the applicant has a reasonable excuse for not attending an assessment is set out in various authorities, but a helpful summary is to be found in Hill J’s judgment in the case of McKinnon v The Commonwealth, (unreported, FCA, No. 518 of 1996; 19 November 1998). His Honour concluded, after referring to Prescott v Bulldog Tools Ltd [1981] 3 All ER 869:
“There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.”
12. The evidence of Dr Atchison, as I interpret it, was that there is a theoretical risk in the case of people with the condition from which Mr Kermode suffers of an adverse consequence including suicide. However, her assessment was that risk was not such that I would regard it as a real risk within the terms of the test as explained by Hill J in McKinnon’s case, and in giving her evidence Dr Atchison took into account the further matters to which I have already referred which would tend to mitigate the risk of harm to Mr Kermode if he attends the appointment. I therefore conclude that Mr Kermode does not have a reasonable excuse for not keeping the proposed appointment with Professor Goldney.
13. I add that my decision is based on the evidence before me this morning, and that if further evidence is adduced which changes the assessment of the risk to Mr Kermode then the matter can be brought on again before the tribunal and any such further evidence that might be available will be considered by the tribunal, and the tribunal will reconsider the position.
14. I also add that the respondent is no doubt better informed about the risk to the applicant of keeping the appointment with Professor Goldney as a result of the evidence that has been given this morning. It would of course be open to the respondent to reconsider the possibility of engaging another psychiatrist to further reduce the risk to Mr Kermode, but that is a matter for the respondent to consider, and it would not be competent for this tribunal to make any direction requiring the respondent to adopt that course. What I will do, however, is to arrange for Dr Atchison’s evidence this morning to be transcribed and for a copy to be made available to both parties in case that will assist the respondent to consider its position.
15. The decision I make this morning therefore is as follows. For reasons given orally, the applicant, on the evidence before the tribunal, does not have a reasonable excuse to refuse to undergo the proposed examination by Professor Goldney. Accordingly, if he refuses to undergo that assessment then in consequence of s 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the proceedings in this tribunal will be suspended until the such examination takes place, and also by force of s 57 (if the respondent decides that any such refusal is without a reasonable excuse), the applicant’s rights to compensation under that Act will be suspended until the examination takes place.
I certify that the 15 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 3 November 2009
Date of Decision 3 November 2009
Date of Written Reasons 25 November 2009
Applicant In PersonRepresentative for Mr J Zaplatynskyj
the Applicant Vietnam Veterans' Association of South Australia
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore
0