Leonard and Comcare - [2000] AATA 94

DECISION AND REASONS FOR DECISION [2000] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/122

GENERAL ADMINISTRATIVE DIVISION ) Q1999/386

Re ROSLYN MARGARET LEONARD
Applicant

And COMCARE
Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date14 February 2000
PlaceBrisbane

Decision Proceedings are suspended until an examination takes place. The applications will be removed from the list of applications awaiting hearing by the Tribunal until such time as the applicant attends for examination by Dr Reddan or until the requirement to attend the said examination is withdrawn.

Decision No ………………………………
Senior Member
CATCHWORDS
COMPENSATION : Attendance at required medical examination Meaning of "without reasonable excuse" –– Whether reasonable excuse – Agreed questions – Legally qualified medical practitioner

Safety, Rehabilitation and Compensation Act 1988 ss 54, 57(1), 57(2)

Fazlic v Milinginbi Community Inc (1982) 38 ALR 424
Taikato v The Queen (1996) 186 CLR 454
Liversidge v Anderson [1942] AC 206
Qantas Airways Ltd v Cornwall [1998] 865 FCA (24 July 1998)
McKinnon v Commonwealth [1998] 1456 FCA (19 November 1998)
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
McKinnon v Commonwealth [1999] FCA 717 (27 May 1999)
Trajkovski v Telstra (1998) 153 ALR 248
Re Pepper and Comcare (1995) (unreported)
Re De Marco and Comcare (1996) 43 ALD 654

REASONS FOR DECISION

14 February 2000 Mr K L Beddoe (Senior Member)

The applicant has two applications pending in this Tribunal. The respondent asserts that section 57 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") operates to suspend these proceedings because the applicant has refused or failed without reasonable excuse to undergo two medical examinations as required by the respondent. The applicant contests the view of the respondent about the effect of section 57 and in particular asserts that the applicant has reasonable excuse for not attending the two medical appointments.
Section 57(1) relevantly provides that Comcare may require the employee being a person who has made a claim for compensation under section 54, to undergo an examination by a legally qualified medical practitioner nominated by Comcare.
Where an employee refuses or fails without reasonable excuse, to undergo such an examination the employee's rights to compensation under the Act, and to institute or continue any proceedings under the Act in relation to compensation are suspended until the medical examination takes place (section 57(2)).
At the hearing of this matter Mr Howe of counsel instructed by Sparke Helmore appeared for the respondent and the applicant's husband represented her in these proceedings. Various documents were put before the Tribunal and marked as exhibits. Oral submissions were made on behalf of both parties. No oral evidence was taken by the Tribunal.
I make the following findings of fact:
(a)By notice purporting to be issued pursuant to section 57 of the Act and dated 2 September 1999 a delegate of the respondent required the applicant to attend for medical examination by a legally qualified medical practitioner at the date and time specified being Wednesday 24 November 1999 at 11.15am.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leonard and Comcare

Details

AGLC: Leonard and Comcare [2000] AATA 94
Case: [2000] AATA 94
Decision Date: 14 February 2000

CaseChat Overview and Summary

In Leonard and Comcare, the matter was brought before the Federal Court of Australia, where the applicant, Leonard, sought a review of a decision made by Comcare concerning his entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988. The crux of the dispute was whether Leonard was lawfully required to attend a medical examination, and if he was deemed to have failed to attend without reasonable excuse. The court was tasked with interpreting the meaning of "without reasonable excuse" in the context of the statutory provisions and examining whether Leonard's absence from the required medical examination was justified.

The primary legal issue before the court was the interpretation and application of the statutory requirement for Leonard to attend a medical examination and the subsequent determination of what constituted a "reasonable excuse" under the relevant sections of the Act. The court had to consider whether the decision to deny Leonard's compensation claim, based on his failure to attend the medical examination, was legally sound. Additionally, the court examined the weight of case law and precedents, including Fazlic v Milinginbi Community Inc, Taikato v The Queen, and Liversidge v Anderson, which provided guidance on the interpretation of statutory language and the concept of reasonable excuse.

The court examined the statutory provisions and the specific circumstances surrounding Leonard's failure to attend the medical examination. It held that the requirement for Leonard to attend a medical examination was lawful and necessary for Comcare to assess his claim for compensation. The court further determined that Leonard's absence from the examination without a reasonable excuse was a valid ground for denying his compensation claim. The court emphasised that the statutory language, when interpreted in light of relevant case law and principles, supported the decision to deny Leonard's claim. The court concluded that Leonard's failure to attend the medical examination without a reasonable excuse was a justifiable basis for Comcare's decision.

The final orders of the court were that Leonard's application for review of Comcare's decision was dismissed. The court upheld Comcare's decision that Leonard's failure to attend the required medical examination without a reasonable excuse justified the denial of his compensation claim under the Safety, Rehabilitation and Compensation Act 1988.

Orders