Naylor and Comcare (Compensation) - [2019] AATA 2339

Naylor and Comcare (Compensation) [2019] AATA 2339 (1 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5448
Re:Mechelle Naylor
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 August 2019
Place:Brisbane

The Tribunal orders that the application be held in abeyance until further order of the Tribunal.
.............................[SGN].......................................
Deputy President Dr P McDermott RFD
Catchwords
JURISDICTION - Section 57 Notice under the Safety Rehabilitation and Compensation Act 1988 (Cth) – Independent Medical Examination - Objection to Notice - Reasonable excuse – Suspension – Administrative Appeals Tribunal has no jurisdiction
Legislation
Administrate Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Brice and Comcare [2007] AATA 1476
Hutchinson v Comcare [2018] FCA 1235
Guerriero and Comcare (Compensation) [2017] AATA 2984
Mutton and Linfox Armaguard Pty Ltd (2009) 111 ALD 243
Re Steele and Pacific National Pty Limited (2009) 50 AAR 139
Re Bessell and Telstra Corporation Ltd (1994) 20 AAR 382
Von Stieglitz and Comcare [2012] AATA 729
Williams and Comcare [1996] AATA 68
Secondary Materials
Guide to the Workers’ Compensation Jurisdiction
Safety Rehabilitation and Compensation (Declaration and Specification) Notice 2007
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 August 2019
INTRODUCTION

The respondent issued a notice under s 57(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) requiring the applicant to attend a further Independent Medical Examination. The applicant objects to the issue of the notice and asks the Tribunal to determine whether the applicant has a reasonable excuse to not attend the medical examination. I give my reasons why I consider the Tribunal has no jurisdiction to review a notice under s 57(1) of the SRC Act or to review a decision by a relevant authority under s 57(2) of the SRC Act to suspend the payment of compensation. I also state that the decision as to whether an applicant has a reasonable excuse for not attending a medical examination is in general within the determination of the relevant authority. However, the Tribunal can always determine the existence and limits of its jurisdiction.
BACKGOUND
On 28 May 2018, the applicant made a claim for worker’s compensation for adjustment disorder, mixed anxiety and depressed mood. Subsequently, the respondent issued a notice under s 57(1) of the SRC Act for the applicant to attend an Independent Medical Examination. In July 2018, the applicant attended the medical examination with Dr Jatheesh Pala Valappil.
On 16 August 2018, the respondent made a decision to deny the applicant compensation under s 14 of the SRC Act. On 10 September 2018, the respondent affirmed the decision. On 25 September 2018, the applicant applied to the Tribunal for review of the decision of 10 September 2018.
On 10 December 2018, the respondent issued a notice under s 57(1) of the SRC Act, requiring the applicant to attend an Independent Medical Examination…

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 Naylor and Comcare (Compensation)

Details

AGLC: Naylor and Comcare (Compensation) [2019] AATA 2339
Case: [2019] AATA 2339
Decision Date: 1 August 2019

CaseChat Overview and Summary

This matter concerned an application before the Administrative Appeals Tribunal (AAT) where the applicant, Naylor, objected to a notice issued by Comcare requiring an independent medical examination under section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Comcare argued that no reasons were required for the request, as it was necessary for the thorough investigation of the applicant's compensation claim and to ensure appropriate expenditure of funds, aligning with its duty to assist the Tribunal under section 33(1AA) of the *Administrative Appeals Tribunal Act 1975* (Cth).

The central legal issue before the Tribunal was whether it possessed the jurisdiction to review Comcare's decision to issue a section 57 notice for an independent medical examination. The Tribunal considered the impact of amendments to section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), specifically the insertion of section 57(6), which permits examinations at intervals specified by the Minister. While a previous legislative instrument under this section was no longer operative, the Tribunal concluded that section 57(6) clarified that multiple notices could be issued under section 57(1), and that the reference to "one legally qualified medical practitioner" did not preclude examination by different practitioners.

The Tribunal determined that it lacked jurisdiction to review decisions made under section 57(1) or 57(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). It reasoned that the AAT is a creature of statute and its jurisdiction is conferred by specific enactments. A "reviewable decision" under section 60 of the Act, which the AAT can review under section 64, is defined as a decision made under section 36(2) or section 62 of the Act. Decisions made under section 57, however, are not included within this definition. The Tribunal noted, by reference to *Hutchinson v Comcare* [2018] FCA 1235, that decisions under section 57(2) are amenable to review under the *Administrative Decisions (Judicial Review) Act 1977* (Cth).

The Tribunal ordered that the application be held in abeyance to allow the parties to consider their positions. It directed Comcare to advise in writing if the applicant attended any further medical examination. The Tribunal also expressed concern that Comcare had not provided a copy of the suspension notice, highlighting Comcare's ongoing obligation under section 38AA of the *Administrative Appeals Tribunal Act 1975* (Cth) to lodge material documents promptly, particularly given that the suspension notice impacted the applicant's right to continue proceedings before the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Hutchinson v Comcare [2018] FCA 1235 at [14], Barker J observed that a decision of a relevant authority under s 57(2) of the SRC Act is amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).[3][3] See also, Re Steele and Pacific National Pty Ltd (2009) 50 AAR 139 [11]. CONCLUSION The Tribunal orders that the application be held in abeyance to allow the parties to consider their positions. The respondent should advise the Tribunal in writing if the applicant attends any further medical examination that may be scheduled. The Tribunal is concerned that the respondent did not provide a copy of the suspension notice to the Tribunal after it was issued. Pursuant to s 38AA of the Administrate Appeals Tribunal Act 1975 (Cth), the respondent has an ongoing requirement for lodging material documents with the Tribunal as soon as practicable after obtaining possession of the document. The suspension notice certainly is a material document because under s 57(2) of the SRC Act the right of the applicant to continue proceedings in this Tribunal is suspended.

Ratio Decidendi

Legal Principle Established

The respondent submits that there is no requirement under s 57(1) of the SRC Act to require the respondent to provide reasons why a further Independent Medical Examination is necessary. The respondent submits that the “the Applicant has made a claim for compensation with Comcare, which needs to be thoroughly investigated to ensure that funds are being appropriately spent.” The respondent submits that in requesting a further Independent Medical Examination the respondent is adhering to s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides: “the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding”. CONSIDERATION The Tribunal observed in a previous directions hearing with the parties that after Williams and Comcare [1996] AATA 68 was decided, s 57 of the SRC Act was amended by the insertion of s 57(6) of the SRC Act which provides:“An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by legislative instrument.” Pursuant to s 57(6) of the SRC Act the Minister issued the Safety Rehabilitation and Compensation (Declaration and Specification) Notice 2007, which provided:“For subsection 57(6) of the Safety, Rehabilitation and Compensation Act 1988, I specify that, where an employee is in receipt of weekly payments of compensation and has been subject to an assessment under section 36 of the Act, the intervals between examinations under this section by the same practitioner shall not be less than one month.” This Legislative Instrument is no longer operative as it was subject to a sunset clause. I have concluded that s 57(6) of the SRC Act clarifies that more than one notice can be issued by a relevant authority under s 57(1) of the SRC Act. There is no warrant for me to conclude that the relevant authority is restricted in the choice of medical practitioner and has to select the same medical practitioner for a subsequent examination, the reference in s 57(1) of the SRC Act to one legally qualified medical practitioner prevents the examination of an applicant by a panel of doctors.[1] [1] See: Re Bessell and Telstra Corporation Ltd (1994) 20 AAR 382; Re Steel and Pacific National Pty Ltd (2009) 50 AAR 139; Mutton and Linfox Armaguard Pty Ltd (2009) 111 ALD 243. This Tribunal is a creature of statute and only has power to review decisions to which it has been given jurisdiction by statute. Pursuant to s 25 of the Administrative Appeals Tribunal Act 1975 (Cth), jurisdiction is conferred under an enactment where a decision has been made. The Administrative Appeals Tribunal may review a reviewable decision pursuant to s 64 of the SRC Act. A “reviewable decision” is defined under s 60 of the SRC Act to mean a decision made under s 36(2) or s 62 of the SRC Act. The Tribunal has no jurisdiction to review a decision made under s 57(1) or s 57(2) of the SRC Act.