Martinovic and Australian Capital Territory (Compensation)
[2021] AATA 3435
•27 September 2021
Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 (27 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2931
Re:Constantina Martinovic
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 September 2021
Place:Canberra
Ms Martinovic’s objection is refused. The ACT is granted access to the documents produced by Services Australia-Medicare on 27 July 2021 and the documents produced by the Barton General Practice on 30 July 2021.
……………….[sgd]……………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – compensation for psychological injury – determination of no present liability in respect of medical treatment expenses and incapacity for work - application for review – summons – production of medical records – legitimate forensic purpose – objections to access – request for non-disclosure orders – relevant principles - right to privacy – Harman obligation - apparent relevance – objection refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 39, 40A, 40B, 43
Health Records Act (Privacy and Access) 1997 (ACT) ss 6, 17, Schedule 1
Privacy Act 1988, Schedule 1, Part 3, ss 6.1, 6.2
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19, 58
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Dorajay Pty Limited v Aristocrat Leisure Ltd [2005] FCA 588
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Waind v Hill and National Employers’ Mutual General Association Ltd (1978) 1 NSWLR 372
Wong v Sklavos [2014] FCAFC 120
ZFCC and Comcare [2018] AATA 1358
REASONS FOR DECISION
Mr S. Webb, Member
27 September 2021
Constantina Martinovic claimed compensation in respect of a psychological injury. Employers Mutual Limited, the compensation claims manager for the Australian Capital Territory (ACT), decided by primary determination and on reconsideration that Ms Martinovic suffered an injury for which the ACT was liable to pay compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for two discrete periods of time. Ms Martinovic applied for review of this decision by the Tribunal.
In the course of the resulting proceedings, at the request of the ACT, the Tribunal summonsed records held by Services Australia - Medicare and the Barton General Practice. Orders were made for each party to have access to the documents produced. Ms Martinovic was given first access.
It was at this point that Ms Martinovic objected to the ACT being given access to all of the medical records Services Australia - Medicare and the Barton General Practice produced to the Tribunal. She requested non-disclosure orders in respect of particular documents and records. These are set out in the terms of the objections she originally made and subsequently revised.
The objection
The basis of Ms Martinovic’s objection is that the particular documents and records contain information “that is distinctly recognised and related to particular personal and private health matters which I believe would, if disclosed, remove my right to privacy on particular matters that I believe are of no relevance and unnecessary”.[1] The nature of the information covered by the objection is a matter of some relevance to the issues I must decide, and I will return to this point below.
[1] Applicant’s Further Submissions for Non-Disclosure of Summoned Material by Services Australia, Medicare, 19 August 2021, p.1. This document sets out the information that is the subject of Ms Martinovic’s objection and, at her request, it has not been provided to the Respondent as doing so would negate the objection made.
Furthermore, Ms Martinovic makes the following submissions -
Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – provides that collection of personal information in accordance with the Privacy Act 1988 applies to accessing information relevant to only an injured workers’ claim
Health Records Act (Privacy and Access) 1997 provides it is not reasonable for full access to health records and medical history where material is given in confidence
Privacy Act 1988 requires only the information necessary is to be accessed and accessing all medical records an unreasonable requirement [2]
[2] Ibid.
The information that is the subject of Ms Martinovic’s objections is set out in the following tables:
(a)30 records within the Medicare Patient History Report produced by Services Australia – Medicare:
DATE OF SERVICE
DETAILS
30/9/16
GP consultation – personal matters
28/10/16
GP consultation – personal matters
4/1/17
Pathology – personal matters
4/1/17
Pathology – personal matters
4/1/17
Specialist – personal matters
29/3/17
Specialist - personal matters
9/8/17
GP consultation
(includes child health details) – personal matters
1/11/17
Pathology – personal matters
1/11/17
Pathology – personal matters
1/11/17
Pathology – personal matters
1/11/17
Pathology – personal matters
10/4/19
Pathology – personal matters
10/4/19
Pathology – personal matters
10/4/19
Pathology – personal matters
10/4/19
Pathology – personal matters
10/4/19
Specialist – personal matters
2/5/19
Specialist – personal matters
7/5/19
Pathology – personal matters
7/5/19
Pathology – personal matters
14/5/20
Pathology – personal matters
19/8/20
Pathology – personal matters
19/8/20
Pathology – personal matters
19/8/20
Pathology – personal matters
19/8/20
Pathology – personal matters
23/12/20
Pathology – personal matters
23/12/20
Pathology – personal matters
23/12/20
Pathology – personal matters
23/12/20
Pathology – personal matters
5/1/21
Specialist – personal matters
7/1/21
Specialist – personal matters
(b)8 records within the PBS Patient Summary produced by Services Australia – Medicare, as follows:
PRESCRIPTION DATE
MEDICATION
29/8/16
For personal matters
28/10/16
For personal matters
24/10/17
For personal matters
16/7/18
For personal matters
16/7/18, 10/4/19, 3/9/19
For personal matters
6/5/19
For personal matters
30/5/19, 4/6/19
For personal matters
20/1/20
For personal matters
(c)37 records in the documents produced by the Barton General Practice, as follows:
DATE OF CONSULTATION
DETAILS
Patient summary
Inclusion of personal matters
27/1/21
GP Reference to capital pathology – personal matters
22/12/20
GP reference to personal matters, capital pathology & UMI (imaging) – personal matters
11/12/20
GP consultation – personal matters
11/12/20
GP reference to personal matters
19/8/20
GP consultation – personal matters
9/7/20
GP reference to capital pathology – personal matters
12/6/20
GP reference to capital pathology – personal matters
28/4/20
GP consultation – personal matter
20/1/20
GP consultation – personal matters
3/9/19
GP consultation – personal matters (includes reference to husband’s health)
4/6/19
GP consultation – personal matters
30/5/19
GP consultation – personal matters
10/5/19
GP consultation – personal matters
6/5/19
GP consultation – personal matters
10/4/19
GP consultation – personal matters
16/7/18
GP consultation – personal matters
24/10/17
GP consultation – personal matters
1/11/16
GP consultation – personal matters (includes reference to child’s health)
29/8/16
GP consultation – personal matters
9/7/20
MHP reference to medications – personal matter and personal medical conditions
9/7/20
Referral to specialist - reference to personal matters and medication
9/7/20
GP consultation record reference to pathology – personal matters
31/1/19
Referral to specialist – personal matter and reference to medication for personal matter
21/1/21
Pathology – personal matters
5/1/21
UML (imaging) – personal matter
23/12/20
Pathology – personal matters
19/8/20
Pathology – personal matters
14/5/20
CIG (imaging) – personal matter
7/5/19
Pathology – personal matters
10/4/19
Pathology – personal matters
1/11/17
Pathology – personal matters
24/10/17
Pathology – personal matters
12/6/20
Pathology - personal matters
20/10/20
Referral / specialist – personal matter
18/5/20
Referral / specialist – personal matter
10/4/19
Referral / specialist – personal matter
1/11/17
Pathology – personal matters
The ACT has not been privy to details of the personal matters in respect of which Ms Martinovic asserts her right to privacy and seeks non-disclosure orders.
I have not viewed the materials produced by Services Australia – Medicare or by the Barton General Practice, and for present purposes it is not necessary to do so. But I have reviewed the objection documents Ms Martinovic has given the Tribunal. The objection will be determined on this basis.
Principles
The principles to be applied when dealing with objections of the kind Ms Martinovic has made are well established. Before addressing these and in order to assist understanding, it is germane to make some observations about the Tribunal’s summons power.
The Tribunal’s summons power is set out in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
As can be seen, the summons power is for the purposes of a proceeding before the Tribunal. A person who obtains access to documents produced by compulsion under a Tribunal summons, has a legal obligation not to use the documents for any purpose other than the proceedings in which they are produced. The obligation, which is also referred to as an implied undertaking, is dealt with in Part 5 of the Tribunal President’s General Practice Direction issued on 28 February 2019. Thus, if the ACT is granted access to the documents produced under summons, it will not be able to use the documents or the information they contain for any purpose other than the particular proceedings before the Tribunal.
It is important to observe that there is nothing voluntary about this obligation, which is also known as the Harman obligation.[3] It is a substantive legal obligation that arises in common law from disclosure under compulsion,[4] such that –
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence.[5]
[3] Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304, 309, 319, 320 and 321.
[4] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
[5] Ibid, at [96].
Common law principles relating to subpoenas issued by courts have been applied in respect of summons by the Tribunal.
A Tribunal summons must be for a legitimate forensic purpose. In order to establish a legitimate purpose, it is not necessary to establish that the material sought has substantial relevance to the issues that must be decided in the proceedings.[6] Nevertheless, the material sought must have apparent or adjectival relevance to the issues in the principal proceeding.[7]
[6] Comcare v Maganga [2008] FCA 285 at [36].
[7] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
It is in this context that the provisions of the Health Records Act (Privacy and Access) 1997 (ACT) (ACT Health Records Act) must be considered. Section 6(1) of that Act makes provision for privacy principles that must be complied with, subject to proof of authorised contravention under s 6(2). Notably, the contraventions that may amount to lawful authority for the purposes of the section include a law of the Commonwealth or an order of a court of competent jurisdiction. The privacy principles are set out in Schedule 1.
Principle 9 limits the use to which personal health information of a person may be put - a record keeper who has possession or control of a health record that was obtained for a particular purpose must not use the information for any other purpose. Under s 1(c) of Principle 9, this limit is expressly subject to a law of the Commonwealth or an order of a court of competent jurisdiction that requires or authorises use of the person’s health information for another purpose.
Principle 10 limits the disclosure of personal health information of a person to another entity - A record keeper who has possession or control of a health record must not disclose personal health information about a consumer from the record to an entity other than the consumer. Under s 2(e)(ii) and (iii) of Principle 10, this limit is expressly disapplied where disclosure is required or allowed under a law of the Commonwealth or an order of a court.
Where the use or disclosure of information is required by order of the Tribunal under summons provisions in s 40A and s 40B of the AAT Act, being laws of the Commonwealth, the limits imposed by Principle 9 and Principle 10 fall away.
I note in passing that s 17 of the ACT Health Records Act makes provision for non-disclosure of records that are subject to confidentiality. The phrase subject to confidentiality is given meaning in s 17(3) –
A health record, or part of a health record, in relation to a consumer is subject to confidentiality if—
(a) the consumer notifies a record keeper to the effect that the consumer wants the health record or part of the record, or information contained in the record or part, to remain confidential; and
(b) the record keeper marks the record or part of the record accordingly; and
(c) the consumer—
(i) becomes a legally incompetent person; or
(ii) dies.
This section is not applicable in the circumstances of the present case.
Complementary provisions are set out in the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles it establishes. In particular, s 6.1 of Part 3, Schedule 1 in respect of Privacy Principle 6 bars the use or disclosure of personal information of a person for another purpose. This bar is expressly disapplied by s 6.2(b) where the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order. Thus, where the use or disclosure of personal information is by order of the Tribunal under s 40A or s 40B of the AAT Act for the purposes of proceedings, the bar imposed by s 6.1 of Privacy Principle 6 does not apply.
With regard to the SRC Act, under s 58 a relevant authority has power to request the provision of information by a claimant where it is satisfied the claimant has, or is reasonably able to obtain, information or a document that is relevant to the claim. In Ms Martinovic’s case, the relevant authority is the ACT. Where a claimant refuses or fails, without a reasonable excuse, to comply with a request made by the relevant authority under this section, the authority may refuse to deal further with the claim. For the purposes of this provision, the extent of information that is relevant to a claim is to be assessed on the particular facts of each case by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision.[8] Whether the question of relevance in this context is confined to information that is of direct relevance only, rather than information that may be of adjectival or apparent relevance (such as applies in respect of a subpoena or a Tribunal summons), is not a matter for this Tribunal to decide. The Tribunal has no power to exercise under s 58 of the SRC Act.
[8] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, per Keifel CJ, Keane and Nettle JJ T [15].
The test of apparent relevance involves two considerations:
(a)whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings[9] and may assist in the resolution of the issues in the proceedings;[10] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination, [11] such that, when 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.[12]
[9] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[10] Comcare v Maganga [2008] FCA 285 at [37].
[11] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[12] Wong v Sklavos [2014] FCAFC 120 at [12].
Once a summons has been issued, there are three steps involved:[13]
(a)the production of the summonsed documents to the Tribunal and dealing with any objection to the summons or to production of the documents;
(b)the Tribunal deciding whether access should be granted to the documents produced and dealing with any objection to the grant of access;
(c)the Tribunal admitting into evidence documents (or parts of documents) to which access was granted that are tendered by either party at a hearing, including materials produced in reference to such documents (such as expert medical reports) and documents used in the cross-examination of witnesses, and dealing with any objection to the tender.
[13] See Dorajay Pty Limited v Aristocrat Leisure Ltd [2005] FCA 588 at [12], citing Waind v Hill and National Employers’ Mutual General Association Ltd (1978) 1 NSWLR 372 per Moffit P at 381.
It is only the documents that are taken into evidence in the third step that the Tribunal will have regard to and take into account when determining the application for review. Those documents form part of the evidence before the Tribunal that will be taken into account in the Tribunal’s decision. Under s 43 of the AAT Act, the Tribunal must provide reasons for its decision. Section 43(2B) requires that the reasons must include the Tribunal’s findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
The Tribunal must ensure that each party has a reasonable opportunity to present their case. As s 39(1) of the AAT Act sets out, this includes giving each party opportunity to inspect and make submissions about relevant documents:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Generally, under s 35(1) and (5) of the AAT Act, Tribunal decisions, hearings and the documents that are taken into evidence are public. Nevertheless, under s 35(3) and (4) of that Act, the Tribunal has power to prohibit or restrict publication or disclosure of information that has been lodged with it or taken into evidence where there is a good reason to do so. When deciding to exercise this power, the Tribunal must have regard to the confidential nature of the information and the general principles set out in s 35(5) of the AAT Act:
In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
It is within this broad framework that the grant of access to documents produced under summons must be considered. When dealing with an access objection, the private rights of the person whose information is contained in the documents intersect with the legal requirements for the grant of access to material of apparent relevance. In this respect, it is apposite to recite what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[14] –
“... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”
[14] South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719.
It is this interest that underlies the entitlement of each party to build an evidentiary mosaic when preparing a case for hearing.[15] Arguing that a narrow view should be taken of the relevant evidence, such that the entitlement should be confined to materials of obvious or direct relevance, is no answer. The threshold of apparent relevance that applies to materials produced under summons is somewhat broader than the relevance threshold that applies when considering the admission of evidence.[16] Whether the materials have apparent or adjectival relevance is a matter to be assessed against the substantive issues to be decided in the proceedings and the purposes to which the materials may legitimately be put in the proceedings.
[15] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
[16] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
Many are the cases in which an applicant who has claimed compensation for a work injury asserts privacy rights when seeking to protect their medical records from disclosure. One can understand why: medical records may contain very detailed personal, intimate information about the person which may not have been disclosed to anyone other than the doctor and which the person regards as private. Nevertheless, as was said in Panagiotou and TNT Australia Pty Ltd,[17]
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application.
[17] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24].
In ZFCC and Comcare[18] and O’Sullivan and P&O Maritime Services Pty Ltd,[19] the Tribunal considered circumstances in which a claimant’s personal right to privacy ran up against the legal right of a party to access summonsed materials. In both of these cases, the Tribunal found that elements of the right to privacy, including in relation to intimate personal medical records, may be impliedly surrendered in the context of making a compensation claim, and that a cautious approach should be adopted when determining an objection to access to medical records on relevance grounds.[20]
[18] ZFCC and Comcare [2018] AATA 1358.
[19] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966.
[20] Ibid, at [32]-[33].
While I do not think that the making of a compensation claim in respect of a work injury necessitates surrender of the claimant’s right to privacy in respect of their medical history, the extent to which the person’s medical history and related records may bear upon the substance of the compensation claim is a matter for consideration in the particular circumstances. The relevance question may be narrower when assessing a compensation claim in respect of a physical injury, where issues of causation are clear cut, than when assessing a compensation claim in respect of a multifactorial illness or a systemic ailment, where issues of contributory causation may be more difficult to ascertain.
For this reason, it is necessary to carefully examine the substantive issues that the Tribunal must decide and the findings required, especially where facts are in dispute, in order to properly assess the apparent relevance of materials produced under summons.
Facts
On 3 November 2020, Ms Martinovic claimed compensation for a psychological injury.[21] She asserts that the injury was caused by events in her employment:
From 20/11/19 to 22/5/20 I was exposed to instances of unfair treatment, targeting and exclusion from the Public Trustee and Guardian (PTG) office, Department of Justice and Community Safety (JACS). The psychological injury sustained initially occurred at the PTG and the treatment I was exposed to not only caused psychological damage, but also hindered my ability to undertake my role to the best of my ability. The injury or illness developed at work and is not an aggravation of a pre-existing condition.[22]
[21] Section 37 Documents,T10.
[22] Section 37 Documents, T10a, folio 54.
Her employer, JACS, provided a response to the claim in which assertions are made about Ms Martinovic’s interactions with staff and stakeholders, and her behaviour, from May 2019.[23]
[23] Section 37 Documents, T18b, folios 131-144.
On 6 January 2021, EML issued a determination in which the ACT accepted that Ms Martinovic suffered an injury in the form of an adjustment disorder for which the ACT is liable under s 14 of the SRC Act. The deemed date of the injury was 25 November 2019.[24] The decision maker also determined that the ACT was liable to pay compensation to Ms Martinovic for medical treatment expenses under s 16 of the SRC Act and for incapacity to work under s 19 of that Act during two specified periods:
(a)25 to 29 November 2019; and
(b)27 May 2020 to 2 July 2020.[25]
[24] Section 37 Documents, T19, folio 155.
[25] Ibid, folios 155-156.
It was the decision maker’s assessment that reasonable administrative action significantly contributed to Ms Martinovic’s adjustment disorder on 2 July 2020 such that, thereafter, the ACT was not then presently liable to pay compensation under s 16 and s 19 of the SRC Act.
Ms Martinovic requested reconsideration of this decision.[26] She contended that the date of her injury should be 27 May 2020 and that it continued after 2 July 2020. She asserted that the events of 2 July 2020 did not contribute to her condition.[27]
[26] Section 37 Documents, T21.
[27] Ibid, folio 159.
On 10 March 2021, EML issued a reconsideration decision affirming the determination on 6 January 2021.[28]
[28] Section 37 Documents, T22.
On 7 May 2021, Ms Martinovic applied to the Tribunal for review of EML’s reconsideration decision. In the application, she asserted that the decision was factually and legally incorrect.[29]
[29] T2 and T2a.
Consideration
Ms Martinovic’s application for review raises factual and legal issues relating to causation of her claimed psychological injury, as well as in respect of entitlements to compensation under s 16 and s 19 of the SRC Act. All of the issues that were capable of being decided by the reconsideration decision maker are live issues on review. It is the entirety of the primary determination of her claim that is to be decided afresh by the Tribunal on review.
There are four key elements.
The first requires findings for the purposes of s 5A(1)(a) and s 5B of the SRC Act in respect of a ‘disease’. This involves an examination of materials relating to contributory causes of her claimed psychological ailment and, in particular, whether her employment contributed to a significant degree to the ailment. In making such findings, the matters set out in s 5B(2) of the SRC Act (and any other relevant matters) are to be taken into account:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
As can be seen, any matters affecting Ms Martinovic’s health may be taken into account.
The significant degree threshold essentially involves relativity, especially where the ailment under claim may be contributed to by multiple factors. While precision may not be possible when assessing the degree of employment contribution to an ailment, it is important to carefully consider the extent to which, if at all, other factors causally contributed to the ailment.
The identification of such factors, and the relative contribution of the employment to the ailment that is claimed as an injury, requires examination and assessment of relevant medical materials and records.
The nature of the psychological ailment Ms Martinovic suffers is important. Whether the ailment is diagnosed as an adjustment disorder[30] or a general anxiety disorder,[31] it clearly involves psychological symptoms, including anxiety. Any history of possible contributory causes or psychological symptoms[32] may be relevant.
[30] See T9, folio 45, and T20, folio 157, for example.
[31] See T16, folio 102, for example.
[32] See T12, folio 70, and T16, folio 99, for example.
There is a real possibility the documents produced by Services Australia-Medicare and the Barton General Practice may illuminate factors that may have contributed to some degree, directly or indirectly, to the ailment Ms Martinovic has claimed as an injury or related symptoms.
This consideration is also important when assessing the second key element, namely whether the exclusionary proviso in s 5A(1) of the SRC Act is enlivened in the particular circumstances:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The primary and reconsideration decision makers decided that the exclusionary proviso was enlivened on 2 July 2020 even though the ACT accepted hitherto that Ms Martinovic suffered an injury in the form of a disease, being an ailment to which her employment contributed to a significant degree, from 25 November 2019. For the exclusionary proviso to be enlivened, factual findings are required. Those findings must address the factual requirements of the provision, namely whether Ms Martinovic suffered the disease as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.
In order to make such findings, a careful assessment of relevant medical materials and records is required. In the circumstances of this case, in which symptoms and contributory causes may have occurred over a period of time from 2019, a longitudinal view may be required when assessing any variation in symptoms consequent to events in Ms Martinovic’s life and in her employment.
The third key element relates to the ACT’s liability under s 14 of the SRC Act. Liability arises where the injury results in impairment, incapacity for work or death. The causal nexus between Ms Martinovic’s claimed psychological injury and any impairment or incapacity for work she has experienced raises medical questions. These are matters of fact and degree that turn on medical records, information and opinions of her treating doctors. These are questions that must be addressed in reference to her medical and health circumstances, with particular regard to health concerns, symptoms and conditions that may bear upon any impairment or incapacity for work that may be related to the injury she has claimed. The period to which attention must be directed in this inquiry commences before the claimed injury and runs to the present day.
The fourth key element relates to the causal tests applying to an entitlement to compensation under s 16 and s 19 of the SRC Act. The threshold for entitlement to compensation for medical treatment expenses under s 16 can be seen in the legislative text:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
As can be seen, the causal test has two elements. The first is whether it is reasonable for the employee to obtain the medical treatment in the circumstances, and the second is whether the medical treatment is obtained in relation to an injury. The question of reasonableness in the circumstances requires close examination of the medical treatment obtained and any treatment options, including the relative costs and benefits of the treatment and the options, and the relevant circumstances. The in relation to test requires close examination of the nexus between the particular treatment and the injury under claim. Both of these tests involve detailed medical considerations that require and turn upon medical evidence in the form of documents, records, information and opinions of and provided by treating medical professionals. Such considerations may properly be (and very often are) informed by contemporaneous or historical clinical medical records that illuminate the health circumstances of the person as well as the medical considerations of the medical treatment provider.
The causal threshold for entitlement under s 19 is set out in s 19(1):
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
This ‘as a result of’ test applies in each week under claim, and it is subject to other considerations and formulae that turn, in part, on the amount the claimant is able to earn in any week. A claimant’s ability to earn may be affected by medical restrictions that bear upon his or her incapacity for work. While the extent and nature of medical restrictions may be illuminated by medical records, assessments and certificates of treating doctors, the relationship of any such incapacity for work to an injury requires a close examination of causal factors. An examination of this kind involves careful consideration of medical materials, records, information and opinions, including clinical records, that may illuminate causal factors and any nexus with the claimed injury.
Thus, it can be seen that the medical records of treating doctors, including clinical and treatment records, may have apparent relevance to the causal thresholds that must be applied for the purposes of ss 16 and 19 of the SRC Act. On this point, I note that while pathology and imaging records may not have direct relevance to such considerations, these may illuminate the duration, frequency and nature of medical conditions and related effects which themselves may bear upon the ailment Ms Martinovic has claimed as an injury as well as her incapacity for work and ability to earn from time to time.
In a process akin to discovery, the apparent relevance of materials and information produced by Service Australia-Medicare and by the Barton General Practice must be viewed through the lens of each of these four key elements. In this process, as I have said, relevance has a broader ambit than the more direct tests that apply to the admission of evidence.
On the other hand, the ambit of possible relevance is not so broad that it includes materials that have no possible relevance, or no legitimate purpose in the proceedings. There must be some reasonable basis for thinking the materials may have some relevance. Simply trawling through the materials produced in the hope of finding something of relevance is not appropriate or permissible.
In my assessment, for the reasons I have outlined above, the materials produced by Services Australia-Medicare and the Barton General Practice have adjectival or apparent relevance to the key elements I have identified. This assessment is made without trawling through the documents that have been produced to delineate materials that have actual relevance from those that do not.
Ms Martinovic asserts that the records she has identified in her objections are personal, private and not relevant to the matters the Tribunal must decide. On her description, these records relate to personal health issues and consequent consultations, investigations and treatments. It does not follow, however, that such matters have no apparent or adjectival relevance to the issues the Tribunal must decide. The extent to which, if at all, matters of this kind may bear upon the psychological ailment, and any related medical treatment and incapacity for work, for which she has claimed compensation are relevant considerations that are not fanciful or unreal. Her psychological ailment includes elements of anxiety which may be affected by other health issues or concerns. To this extent, there are reasonable grounds to conclude that the records she has identified in her objections have apparent or adjectival relevance in these proceedings.
Each party must be given a reasonable opportunity to present their case, addressing the particular issues the Tribunal must decide.
While Ms Martinovic argues that certain medical consultations and procedures have no bearing on her claimed injury, no such conclusion can be reached without access to the materials produced and to records of her medical history. Without examining the materials, it is not possible to assess the extent to which health concerns about medical conditions or symptoms she has experienced, and related investigations or treatments she has undergone, may have causally contributed to her psychological symptoms or incapacity from time to time.
I am sympathetic to Ms Martinovic’s concerns about intrusions upon her privacy, which most people would share, and her efforts to protect her private medical information from disclosure. Her submissions give clear expression to interests that can readily be understood. Those interests are not sufficient to prevent the ACT from gaining access to the documents produced by Service Australia-Medicare and by the Barton General Practice for the purposes of these proceedings.
To be clear, this does not mean that all of these documents and the medical information they contain about Ms Martinovic are actually relevant to the proceedings, or that all such materials and information will be admitted into evidence. Decisions of that kind may be required later in the proceedings. Presently, it is only apparent relevance that must be decided, and I have formed the opinion that the documents produced, without examination or exception, are within that broad frame.
I am satisfied that the documents produced by Services Australia – Medicare and the Barton General Practice have adjectival or apparent relevance to the issues the Tribunal must decide in these proceedings. It follows that the ACT will be granted access to the documents.
It is important to reiterate three points.
Firstly, the grant of access to these documents comes with a legal obligation not to use the documents for any purpose other than these proceedings. The ACT is not authorised to use the documents of the information they contain for any purpose other than the proceedings in this application for review.
Secondly, should the ACT seek to use or to tender in evidence any of the summonsed records, Ms Martinovic will have opportunity to object. If this occurs, her objection will be addressed by the Tribunal at that time, applying the thresholds for admission of material into evidence.
Thirdly, it is open for Ms Martinovic to apply for confidentiality orders under s 35(3) or (4) of the AAT Act in respect of her identity or any of the summonsed documents the ACT uses for the purposes of the proceedings. Should she do so, her application will be assessed on its merits.
Decision
Ms Martinovic’s objection is refused. The ACT is granted access to the documents produced by Services Australia-Medicare on 27 July 2021 and the documents produced by the Barton General Practice on 30 July 2021.
72. I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
...................................[sgd]....................................
Mr S. Webb, Member
Dated: 27 September 2021
Date(s) of hearing on the papers:
9 September 2021
Date final submissions received
30 August 2021
Solicitors for Respondent:
Ms Sama Khan, McInnes Wilson Lawyers
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