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

1. 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

2. 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.

3. 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.

4. 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 with Dr Isailovic, on 8 February 2019.

5. On 1 February 2019, the respondent amended the appointment date to 22 February 2019. On 8 February 2019 the applicant informed the respondent that she would not attend the appointment with Dr Isailovic. On 11 February 2019, the respondent reissued the notice under s 57(1) of the SRC Act which required the applicant to attend an Independent Medical Examination with Dr Isailovic on 22 February 2019.

6. On 12 February 2019 the applicant objected to seeing a different psychiatrist. The applicant stated that she was willing to attend a further appointment with Dr Valappil for the purpose of obtaining a further report, but would not attend an appointment with Dr Isailovic.

7. On 20 February 2019 the applicant filed a medical certificate dated 19 February 2019 from Dr Fionnuala Dunne, consultant psychiatrist, which states:

   “It is my opinion that a further Independent Medical Examination is highly likely to have a detrimental impact on Mechelle’s mental state and her progress to date. This would be because she would have to relive [sic] the traumatic events experienced at work and also re-experience a process she found very difficult when she had her previous IME. I would be concerned that this would also reactivate her suicidal ideation and the associated risk of her acting on this.”

8. On 14 February 2019, the applicant requested that the appointment for the Independent Medical Examination be cancelled. On 22 February 2019, the applicant failed to attend the Independent Medical Examination. On 6 March 2019, the respondent wrote to the applicant requesting a reason why the applicant had not attended the Independent Medical Examination. The applicant did not reply to this letter. On 27 March 2019, the respondent issued a written notice suspending the applicant’s entitlements pursuant to s 57(2) of the SRC Act. Subsequently, the applicant requested the Tribunal to set aside the respondent’s decision.

   SUBMISSIONS

9. The applicant relying upon Williams and Comcare [1996] AATA 68 submits that “it is not reasonable for the Respondent to require the Applicant to undergo the Assessment.” The applicant submits that upon the plain reading of s 57 of the SRC Act, the respondent can only obtain the opinion of one legally qualified medical practitioner.

10. The applicant submits that it is unreasonable for the respondent to require the applicant to attend an Independent Medical Examination by a different medical practitioner. The applicant contends that “the Respondent has not provided a cogent reason, or has provided conflicting reasons, for directing the Applicant attend the Assessment.” The applicant submits that a further Independent Medical Examination is sought to support the respondent’s position and requesting a further Independent Medical Examination is “an abuse of the Tribunal’s process”.

11. The applicant, relying on the medical certificate by Dr Dunne, submits that a further medical examination will likely cause the applicant to relapse to suicidal ideations and injury generally. The applicant submits that Dr Dunne is in a better position to make this assessment than the respondent and that the “credibility issues” stem from the applicant’s employer providing a different version of events and that a medical examiner cannot determine issues of credibility. The applicant submits that a supplementary medical report from Dr Valappil would provide any additional evidence required by the respondent, and would be quick and inexpensive. The applicant notes that the respondent has not provided any evidence suggesting that Dr Valappil is unavailable. The applicant submits that the respondent has not identified any particularities of “deficiencies” in the report and that it is no longer for the respondent to be “positively satisfied” of the applicant’s injury.

12. The respondent submits that the respondent is entitled to direct the applicant to attend an Independent Medical Examination with Dr Isailovic who is a legally qualified medical practitioner. The respondent submits that the Tribunal has no jurisdiction to review a decision of a relevant authority under s 57(2) of the SRC Act and relies upon Australian Postal Corporation v Forgie (2003) 130 FCR 279; Brice and Comcare [2007] AATA 1476; Re Steele and Pacific National Pty Limited (2009) 50 AAR 139; and Von Stieglitz and Comcare [2012] AATA 729.

13. The respondent submits that the further medical examination is necessary to provide more information in the review process. The respondent advised that “Comcare having grave concerns in respect of the Applicant’s credibility and recollection of events, which she claims to have contributed to her psychological condition.” The respondent submits that a further Independent Medical Examination is necessary to be able to provide a “thorough report”. The respondent also relies upon s 57(6) of the SRC Act which allows the respondent to require re-examinations.

14. 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

15. 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.”

16. 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.”

17. This Legislative Instrument is no longer operative as it was subject to a sunset clause.

18. 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.

19. 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.

20. In Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [73], the Full Court observed that a decision under s 52(2) of the SRC Act is not included in the definition of “determination” in s 60 of the SRC Act. As a consequence, it is not open to seek a “reconsideration” of any decision made under s 52(2) of the SRC Act. The Tribunal has consistently ruled that it cannot review a decision under s 57(2) of the SRC Act; see, Brice and Comcare [2007] AATA 1476; Funk and Military Rehabilitation Compensation Commission (2008) 49 AAR 306; and Re Steele and Pacific National Pty Ltd (2009) 50 AAR 139.

21. The Tribunal’s Guide to the Workers’ Compensation Jurisdiction provides some guidance as to how the Tribunal should proceed when an applicant’s entitlements are suspended under section 57(2) of the SRC Act; see Part 6.5 of the Guide. If after a period of 3 months has passed, and the applicant has not attended an Independent Medical Examination, the Tribunal may consider any application which may be brought before the Tribunal. The applicant should be aware than an order may be made to dismiss the application pursuant to s 42A of the Administrative Appeals Tribunal Act 1975 (Cth).

22. I am not persuaded that the applicant has established a reasonable excuse for not wanting to attend an appointment with one medical practitioner whilst she is willing to go to an appointment with another medical practitioner. When seeing both practitioners the applicant will have to speak about the events in question. In Guerriero and Comcare [2017] AATA 2984, at [27], Deputy President K Bean remarked:

    “it is not unusual in the context of Tribunal proceedings for an applicant to be examined by more than one medical practitioner of the same specialty. Indeed, it is almost routine for one or both parties in a compensation matter to obtain a further report from a different doctor of the same speciality once proceedings are on foot in the Tribunal”.

23. I appreciate that there is a principle that the Tribunal will determine the existence and limits of its jurisdiction; on this basis the Tribunal may determine whether it still has jurisdiction to proceed with the application but not the question of any suspension of compensation. [2]  However, the question of whether there is a “reasonable excuse” within the meaning of s 57(2) of the SRC Act will generally be for the relevant authority to determine. This was explained in Telstra Corporation and Administrative Appeals Tribunal (2003) AAR 40; [2003] FCA 102 at [11], by Keifel J (as she was then):

    “The excuse cannot be provided by an opinion formed by the Tribunal as to the need for examination. That is a question for the Authority. It may be in some cases that oppressive conduct on the part an Authority, and its effect upon an employee, could be relied upon as furnishing a reasonable excuse.”

    [2] See: Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459; 27 AAR 21; and Re Steele and Pacific National Pty Limited (2009) 50 AAR 139 at [12].

24. On the state of the evidence before me, I cannot conclude that there has been any oppressive or unreasonable conduct by the respondent in this case.

25. 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

26. The Tribunal orders that the application be held in abeyance to allow the parties to consider their positions.

27. The respondent should advise the Tribunal in writing if the applicant attends any further medical examination that may be scheduled.

28. 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.

29.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGN]..............................

Associate

Dated: 1 August 2019

Solicitors for the Applicant:

Solicitors for the Respondent:

Hall Payne Lawyers

Self-Represented