Leonard and Comcare

[2000] AATA 780

DECISION AND REASONS FOR DECISION [2000] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No.  Q1999/386

GENERAL ADMINISTRATIVE DIVISION          )          No.  Q1999/122     
           Re      ROSLYN MARGARET LEONARD         
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member) 

Date30 August 2000

PlaceBrisbane

DecisionThe applications for review are dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.

Decision No.  780/2000  (Sgd)  K L Beddoe
  Senior Member

CATCHWORDS
COMPENSATION : Attendance at required medical examination – Further failure to attend – Suspension of proceedings – Application dismissed

Safety Rehabilitation and Compensation Act 1988 – s57

REASONS FOR DECISION

30 August 2000       Mr K L Beddoe (Senior Member) 

1. The respondent sought to have these applications dismissed because of the applicant's further failure to attend for a medical examination.  I have previously dealt with failures to attend medical examinations by the applicant, in my decision of 14 February 2000.  Since that decision the proceedings in this Tribunal have been suspended by force of the operation of section 57 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").

2. Notwithstanding that the proceedings were suspended the respondent, acting through its solicitors, made arrangements for a further appointment for medical examination by Dr Reddan.

3. By letter dated 25 May 2000 the solicitors (Sparke Helmore) wrote to the applicant in the following terms:

   "Dear Mrs Leonard
   Re:  Roslyn Margaret Leonard v Comcare Australia
         AAT Application Nos:  Q99/122 & Q99/386
   We have arranged the following medical for you with Dr Jill Reddan, consultant psychiatrist, on:
   Date:             Monday, 10 July 2000
   Time:            1.30pm
   Address:       Suites 26-29 Silverton Place
     101 Wickham Terrace
     BRISBANE  QLD  4000
   Please note that as a consequence of your earlier failure to attend for examination without reasonable excuse the proceedings commenced by you in the AAT are and remain suspended until you attend as required (or the requirement is withdrawn).  Comcare requires you to attend and to notify it by 9 June that you intend to do so.  If it does not receive such notification by that date it will assume that your earlier refusal continues and, to avoid the imposition of a further cancellation fee, will cancel the appointment.  In such circumstances you will remain suspended until you attend as required.  No further appointment will be scheduled until you indicate you propose to attend.  In such circumstances further delay in obtaining an appointment would be inevitable.
   Please advise this office of your intentions not later than the close of business on Friday, 9 June 2000.

4. That letter was acknowledged for the applicant.  The respondent sought but did not obtain an assurance that the applicant would attend for the examination by Dr Reddan.  The respondent did not do anything to cancel the appointment because it had failed to get the applicant's assurance.

5. It is accepted by the parties that the applicant attended Dr Reddan's rooms at the appointed time.  The applicant's version of the events that follows was set out in a letter to the respondent dated 11 July 2000.  There are obvious problems with the applicant's record, especially in so far as it purports to set out Dr Reddan's position.  The applicant did not attend the hearing of this matter in the Tribunal and could not be examined in relation to her version of what took place.  However I set out the "verbatim record" as it was put on behalf of the applicant to the respondent as follows:

   "When we were called in at 1.30pm Dr Reddan asked for Roslyn by name.  I introduced Ken to Dr Reddan.   The doctor stated that she would like to interview me on my own first and then with Mr Leonard.  I indicated to the doctor that I'd prefer my husband to be present.  Dr Reddan said that she was sorry but that is not how she conducted the interviews.
   I asked my husband whether I should continue without him and he advised me that it was my decision.  I thought about it for a moment, and feeling that Dr Reddan was a true professional, than told Dr Reddan I would continue.  Dr Reddan, in Ken's presence, stated that I could terminate the interview at any point of time.
   I then entered Dr Reddan's office.  I sat down and was asked my date of birth.
   Dr Reddan then stated that she had been asked by the firm of solicitors Sparke Helmore to interview me.
   I said "Excuse me, was it Sparke Helmore or Comcare Australia who has set up this appointment for me today".
   Dr Reddan said "it was Sparke Helmore".  There was no doubt in my mind that Dr Reddan understood the significance of my question and that the doctor did not believe the appointment had been set up by Comcare or authorised by Comcare.  It was simply an appointment set up and managed by Sparke Helmore.
   I said "This is a Comcare matter before the AAT.  Under the circumstances I am sorry that I cannot proceed with the interview.  I'm sorry I have wasted your time".
   Dr Reddan smiled and commented that she was not surprised that I was not going ahead with the interview."

1. Dr Reddan advised the solicitors by letter dated 10 July 2000 that the "abovenamed person terminated my assessment interview after I informed her that I had been requested to evaluate her by your firm".

2. The applicant now seeks to assert that her withdrawal from the medical examination was reasonable because the examination was not in accordance with section 57 of the Act.  In particular the applicant says there was no formal requirement by the respondent which complied with section 57 so that the examination by Dr Reddan would not be an examination in accordance with section 57.  It was faintly suggested that the examination was for the purposes of the solicitors (Sparke Helmore).

3. I am satisfied and find that:

   (a)from 25 May 2000 the applicant was aware that the examination had been arranged by the solicitors;

   (b)at all relevant times the applicant knew that Sparke Helmore were the solicitors acting for the respondent;

   (c)at all relevant times the applicant understood that Comcare had the power pursuant to section 57 of the Act to require an examination by a legally qualified medical practitioner nominated by Comcare;

   (d)at all relevant times the applicant had notice of the fact that Comcare had required medical examination by Dr Reddan by its notice to the applicant dated 2 September 1999 made pursuant to section 57 of the Act;

   (e)at all relevant times the applicant knew that this Tribunal had found that she did not have reasonable excuse for her non-attendance for examination by Dr Reddan on 19 January 2000 and that as a consequence the proceedings in this Tribunal were suspended by force of section 57 of the Act;

   (f)the applicant was aware because of the Tribunal's decision of 14 February 2000 that her applications for review would not proceed unless she attended Dr Reddan for medical examination or the respondent withdrew its requirement pursuant to section 57 of the Act; and

   (g)the applicant failed to attend the hearing before the Tribunal in person to explain her position without any explanation for her non-attendance.

4. The explanation made on behalf of the applicant is that she resists attempts by the respondent to conduct invasive medical examinations and seeks to control the medical examination by refusing access to medical records and controlling the questions to be answered by the medical examiners.

5. The applicant seeks to maintain personal privacy as to her medical history so that it is not available to the respondent unless the respondent has paid for it or there is an advantage perceived by the applicant to make the record available.  That is, of course, a reasonable position if the respondent is conducting some sort of "fishing expedition" but here the issue is confined to a required examination by a Consultant Psychiatrist where there is no previous report by a psychiatrist and psychological issues are involved in the applicant's claims.  (Tribunal's reasons of 14 February 2000 refer)

6. I came to a clear impression that the applicant was relying on specious reasons to frustrate these proceedings and, it might be inferred, in the light of the applicant's failure to explain her position, to force the respondent into a settlement of her claims.  Certainly the applicant has been seeking a settlement without proceeding to a hearing.  By refusing to proceed with the medical examination by Dr Reddan the applicant was aware that her proceedings in the Tribunal would remain suspended (she had no apparent reason to suspect that the respondent would withdraw the requirement).

7. I have therefore come to the view that the withdrawal from the examination by Dr Reddan on 10 July 2000 for what can only be described as a specious reason was vexatious because the applicant was thereby frustrating the respondent and the proceedings in this Tribunal.

8. For these reasons I have decided that the applicant's action in withdrawing from the examination by Dr Reddan results in the presently suspended proceedings becoming vexatious, and serving no purpose. The applications for review should therefore be dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act"). No direction will be made under paragraph 42B(1)(b).

9. It is not necessary that I consider the respondent's alternative submission in relation to section 42A(5) of the AAT Act.

   I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

   Signed:         
     T G Lowther
      Associate

   Date/s of Hearing  30 August 2000
   Date of Decision  30 August 2000
   Representative for the Applicant   Mr Leonard
   Solicitor for the Respondent         Sparke Helmore