Noronha and Comcare (Compensation)

[2021] AATA 2456

Noronha and Comcare (Compensation) [2021] AATA 2456 (23 July 2021)

Division:GENERAL DIVISION

File Number(s):      2019/7653

Re:Ovina   Noronha

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:23 July 2021

Place:Sydney

The Tribunal finds that the Applicant did not have a ‘reasonable excuse’ pursuant to s 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) not to attend her appointment with Dr Antonella Ventura on 1 July 2021.

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The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Compensation – Attendance at required medical examination – Whether Applicant had a “reasonable excuse” not to attend under subsection 57(2) of the Safety, Rehabilitation and Compensation Act 1988 – Applicant did not have a reasonable excuse not to attend

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 57

CASES

Buck v Comcare (1996) 41 ALD 281

Fazlic and Milinginbi Community Inc (1982) 150 CLR 345

Leonard and Comcare [2000] AATA 94

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589

Taikato v R (1996) 139 ALR 386

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

23 July 2021

BACKGROUND

1. This decision arises out of an application to the Tribunal by Mrs Ovina Noronha seeking merits review of the internal review decision of a review officer of Comcare dated 11 September 2019. By that decision, the review officer affirmed a determination dated 21 May 2019, which declined ongoing medical expenses and incapacity payments to Mrs Noronha under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) on the grounds that her workplace injury suffered on 15 September 2009 is no longer a contributing factor to her condition.

2. Comcare issued a notice under s 57(1) of the Act on 4 June 2021, instructing the Applicant to attend a medical examination with psychiatrist, Dr Antonella Ventura, on 1 July 2021.

3. On 8 June 2021, the Applicant contacted Comcare and requested to be provided with the briefing documentation that had been sent to Dr Ventura ahead of her appointment. Comcare notified the Applicant by email that the letter of instruction to Dr Ventura would be provided to her at the time the doctor’s completed report is filed and served with the Tribunal. 

4. On 11 June 2021, the Applicant requested that the Tribunal issue summons’ to Comcare and Dr Ventura for the production of ‘all instructing materials sent to Dr Antonella Ventura’. A further summons addressed to Comcare also requested the production of ‘the full report of Marilyn Roche MR Consulting dated 29^th September 2003’ and ‘the full report of Jeff Lamond CPM Reviews dated 1^st October 2010’.

5. On 17 June 2021, Comcare advised the Tribunal that it did not hold a copy of the report of Ms Marilyn Roche dated 29 September 2003, as specified in the summons issued by the Tribunal.

6. On 18 June 2021, the Applicant wrote to the Tribunal objecting to attending the appointment with Dr Ventura. The Applicant stated that she had not received all of the background documentation provided to Dr Ventura, despite repeated requests to Comcare and summons’ issued by the Tribunal on 11 June 2021. The Applicant claimed that she had attended approximately 12 appointments organised by Comcare in the past and had always been sent all background documentation before each assessment. It was also claimed that Comcare’s production of the report of Ms Marilyn Roche was essential for ‘further medical assessments and procedural fairness’.

7. On 22 June 2021, the Respondent’s representative contacted the Tribunal and advised that it had received a further objection from the Applicant to attending the medical examination with Dr Ventura. Comcare claimed that the reasons provided for the objection were not acceptable reasons for the examination not to proceed and would not constitute a ‘reasonable excuse’.

8. The matter was listed for a directions hearing by telephone on 30 June 2021 to hear the Applicant’s objection to attending the medical appointment with Dr Ventura, as well as Comcare’s position on the issue.

9. At the hearing and from the submissions of the parties, it became clear that the proceedings were more in the nature of an interlocutory hearing and the Tribunal was being asked to determine whether, as a matter of law, the Applicant had a ‘reasonable excuse’ under s 57(2) of the Act not to attend her medical appointment with Dr Ventura the next day.

   ISSUE

10. The primary issue for determination is whether, under subsection 57(2) of the Act, the Applicant had a ‘reasonable excuse’ not to attend the appointment scheduled with Dr Ventura on 1 July 2021.

    RELEVANT LAW

11. Comcare’s power to compel a claimant to undergo medical examination is governed by section 57 of the Act, which provides as follows:

    (1) Where:

    (a) a notice has been given to a relevant authority under section 53 in relation to an employee; or

    (b) an employee has made a claim for compensation under section 54;

    the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.

    (2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.

    (3) The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.

    (4) The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:

    (a) the means of transport available to the employee for the journey;

    (b) the route or routes by which the employee could have travelled; and

    (c) the accommodation available to the employee.

    (5) Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of suspension

    (6) 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.

    DISCUSSION

12. In this case, the Applicant has been in receipt of compensation from Comcare for a workplace injury suffered on 15 September 2009 while she was employed by the Department of Veterans’ Affairs (DVA). On 21 May 2019, Comcare made a determination to decline ongoing medical expenses and incapacity payments under sections 16 and 19 of the Act on the basis that the Applicant’s former employment at the DVA is no longer a contributing factor to her condition. At the Applicant’s request, the determination was reviewed and affirmed by a review officer of Comcare on 11 September 2019.

13. The Applicant applied to the Tribunal on 20 November 2019 for merits review of the internal review decision of Comcare dated 11 September 2019.

14. In the context of her application before the Tribunal, the Applicant was issued a notice by Comcare on 28 June 2021 under section 57(1) of the Act, which required her to attend an appointment with a psychiatrist, Dr Antonella Ventura, on 1 July 2021.

15. Section 57(2) allows for the suspension of the Applicant’s claim if she fails to attend the appointment without ‘reasonable excuse’.

16. There are significant grounds to be found in the caselaw in support of this position. The High Court considered the issue of reasonable excuse in the case of Taikato v R (1996) 139 ALR 386. The majority made the following comment at paragraph 392:

    The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.

17. The issue was also considered by Finn J of the Federal Court in Buck v Comcare (1996) 41 ALD 281. In that case, his Honour held that the operation of subsection 57(2) does not authorise or require a decision of an administrative character to be taken by Comcare. At paragraph 285, his Honour cited with approval the comments of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589:

    I have reached the conclusion, albeit with some hesitation, that s 57(2) does not, relevantly, authorise or require a decision of an administrative character to be taken by Comcare. To use the language of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska, supra, at 601, “the sub-paragraph means what it says”. It stipulates the circumstances in which an employee’s rights will be suspended – suspended by force of the subsection. As and when those circumstances occur, so also does the suspension of rights. Again to use the language of Lockhart J (at 601): “No decision by anybody is required to bring about this change”.

18. The Tribunal also considered the issue in Leonard and Comcare [2000] AATA 94. In that matter, the applicant refused to attend a medical examination on the basis of the failure of the parties to formulate a set of agreed questions for the examiner. In determining whether this constituted a ‘reasonable excuse’ under s 57(2), the Tribunal relied on the High Court decision in Fazlic and Milinginbi Community Inc (1982) 150 CLR 345, where it was held at paragraph 427:

    Any assessment of reasonableness or otherwise of a worker’s refusal of treatment must depend upon the worker’s state of knowledge at the relevant time. This accords with both good sense and authority. A worker’s choice cannot be said to be unreasonable because he failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed.

19. Notably in Leonard, at paragraph 22 the Tribunal rejected the argument that the absence of agreed questions before the examiner was a reasonable excuse for non-attendance:

    I can find nothing in the legislation requiring agreed questions, nor, in my experience, is it the universal practice to agree and or provide the questions put to the examining medical practitioner by the respondent. While such a practice will be desirable in some circumstances there is no obligation on the respondent to follow this course.

20. The Applicant provided voluminous materials to the Tribunal in favour of her arguments as to why she would not or should not have to attend the appointment with Dr Ventura.  Her arguments may be summarised as follows:

    (a)The briefing documentation sent to Dr Ventura by Comcare for the medical appointment scheduled on 1 July 2021 has not been provided to the Applicant;

    (b)On 27 May 2021, the Tribunal issued a summons to Comcare requesting the report of Ms Marilyn Roche dated 29 September 2003. The summons has not been complied with;

    (c)The report of Ms Marilyn Roche has not been produced by Comcare despite repeated requests for its production. Comcare’s claim that it no longer has the report on file is irregular due to the fact that it was submitted to the AAT during a hearing in August 2008 and should be accessible under Comcare’s document retention policy; and

    (d)The report of Ms Marilyn Roche dated 29 September 2003 should be presented to Dr Ventura as ‘background briefing’ to any further psychiatric assessment.

21. It is hard to see how not being in possession of the briefing material provided to Dr Ventura is a reasonable excuse for the Applicant not attending her appointment with the doctor. Generally, it is not a reasonable expectation that briefing documents must be made available to an examinee prior to a medical appointment. In this regard, I respectfully agree with the decision of this Tribunal in Leonard referred to above.

22. A further reason put forward by the Applicant as a reason not to attend her appointment was that a report of Ms Marilyn Roche had not been produced under summons by Comcare. The Tribunal had however been advised by a representative from Comcare’s legal department, on 17 June 2021 that they did not hold a copy of the report, which was prepared in 2003. I accept that Comcare does not have the report and that it is understandable that a report that is some 18 years old may not be retained by Comcare even if it had been in their possession at some point. It is also likely that a report from 2003 would be of limited relevance to a medical assessment being undertaken in 2021.

23. At the hearing, after listening to the arguments of both parties, I told the Applicant that having considered all of the materials before the Tribunal, I was of the opinion that the reasons put forward by her for non-attendance at her medical appointment the next day did not constitute a “reasonable excuse” and that it was in her best interests to attend the appointment with Dr Ventura. I said that I would give a written decision as soon as practicable, but it was important that she was given an oral decision given the proximity of her appointment with Dr Ventura.

    DECISION

24. The Tribunal finds the Applicant did not have a ‘reasonable excuse’ pursuant to s 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) not to attend her appointment with Dr Ventura on 1 July 2021.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 23 July 2021

Date(s) of hearing:	30 June 2021
Date final submissions received:	30 June 2021
Applicant:	In person (by telephone)
Solicitors for the Respondent:	E Baggett, Moray and Agnew