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.
..............................[SGD]..........................................
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

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.
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.
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.
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’.
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.
On 18 June 2021, the Applicant wrote to the Tribunal objecting to attending…

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 Noronha and Comcare (Compensation)

Details

AGLC: Noronha and Comcare (Compensation) [2021] AATA 2456
Case: [2021] AATA 2456
Decision Date: 23 July 2021

CaseChat Overview and Summary

This matter concerned an application before the Administrative Appeals Tribunal concerning compensation. The applicant, Ms Noronha, had failed to attend a medical examination required by Comcare. The central dispute was whether Ms Noronha possessed a "reasonable excuse" for her non-attendance, as contemplated by subsection 57(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal was required to determine whether the reasons provided by Ms Noronha for not attending the scheduled medical examination constituted a "reasonable excuse" under the Act. This involved an assessment of the applicant's circumstances and the adequacy of her justification for failing to comply with the requirement to attend the examination.

The Tribunal found that the reasons advanced by Ms Noronha did not amount to a reasonable excuse for her non-attendance at the medical appointment. The Deputy President provided an oral decision to the applicant, noting the proximity of the appointment and the importance of her attendance, before issuing this written decision. The Tribunal concluded that Ms Noronha did not have a reasonable excuse pursuant to s 57(2) of the Act for failing to attend her appointment with Dr Ventura on 1 July 2021.

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

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 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.

Ratio Decidendi

Legal Principle Established

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