Richards and Comcare (Compensation) - [2015] AATA 1031

Richards and Comcare (Compensation) [2015] AATA 1031 (23 October 2015)

Division

GENERAL DIVISION

File Number

2015/3204

Re

Kirrilly Richards

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 23 October 2015

Date of written reasons 11 January 2016

Place Sydney
The Tribunal does not have jurisdiction to make a declaration that Ms Richards has a reasonable excuse for not attending a medical appointment with Dr McGill on 30 October 2015.

..................[SGD]............................................
J W Constance
Deputy President
CATCHWORDS
COMPENSATION - Applicant's attendance at medical appointment – reasonable excuse not to attend an appointment - section 57 notice to attend medical appointment – AAT’s jurisdiction to review section 57 notices – application for declaration refused
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37(7), 57, 60(1), 62, 64

Administrative Appeals Tribunal Act 1975 (Cth) ss 25(1)
CASES
Australian Postal Corporation v Forgie (in her capacity as Deputy President of the Administrative Appeals Tribunal) and Another [2003] FCAFC 223

Buck v Comcare (1966) 66 FCR 359
Peter Steele and Pacific National Pty Limited [2009] AATA 321

Von Stieglitz and Comcare [2012] AATA 729

WRITTEN REASONS FOR DECISION
Deputy President J W Constance
11 January 2016
INTRODUCTION

On 15 February 2010, Ms Richards suffered sprain injuries to her neck and thoracic region. Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) to compensate her for these injuries.
By a decision made 12 June 2015, Comcare affirmed an earlier determination that it was not liable to pay certain medical expenses, incapacity payments and household services and attendant care service expenses claimed by Ms Richards to have been incurred as a result of her injuries. She has applied to the Tribunal to review this decision.
Since making her claim, Ms Richards has attended a number of medical appointments arranged by either Comcare or her employer. The purpose of these appointments was to obtain medical opinion to assist in processing Ms Richards claim.
By email of 24 August 2015 the Solicitors for Comcare advised the Solicitors for Ms Richards as follows:
We are instructed to arrange for your client to be re-examined by rheumatologist Dr Neil McGill for the purposes of obtaining a medical report from him. We have scheduled the appointment for Dr McGill’s next available date – i.e. 30 October 2015 at 11:30 am.
The appointment was to take place at Dr McGill’s rooms in Newtown, a suburb of Sydney.
As Ms Richards indicated a reluctance to attend this appointment, on 4 September 2015 Comcare issued to Ms Richards a notice requiring her to attend the examination by Dr McGill. The notice was issued pursuant to section 57 of the Act.
On 24 September 2015, Ms Richards applied to the Tribunal “for a direction that the s.57 Notice issued by the Respondent on 4 September is invalid because it asks the Applicant to attend an appointment because they [sic] have a reasonable excuse not to attend”.
On 23 October 2015 I refused the application for the direction sought…

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.

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Details

Case: [2015] AATA 1031
Decision Date: 23 October 2015

CaseChat Overview and Summary

In the case of Richards and Comcare (Compensation), Ms. Richards sought a declaration from the Administrative Appeals Tribunal (AAT) that she had a reasonable excuse for not attending a medical appointment with Dr. McGill. The dispute arose under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), where Ms. Richards claimed that she had been assessed by numerous doctors regarding her compensation claim, including two rheumatologists. Despite this, she argued she had a reasonable excuse to refuse to attend an appointment with Dr. McGill, as she had not been examined by him previously. The central legal issue was whether the AAT had jurisdiction to review the decision to require Ms. Richards to undergo an examination by Dr. McGill.

The court examined the AAT's jurisdiction to review decisions made under the SRC Act. The AAT Act provides for the Tribunal to review decisions made in the exercise of powers conferred by an enactment, contingent on the grant of power by that enactment. Section 64 of the SRC Act allows for an application to the Tribunal for a review of a "reviewable decision." However, the definition of "reviewable decision" in subsection 60(1) does not include decisions made under section 57, which pertains to the requirement for an employee to undergo a medical examination. The court relied on the precedent set in Australian Postal Corporation v Forgie, where the Full Court of the Federal Court concluded that the Tribunal had jurisdiction to review decisions under a similar provision, provided the decision involved a "determination" within the meaning of the SRC Act. However, since section 57 is not included in the specified sections of the Act, it was determined that the AAT did not have jurisdiction to review decisions made under this section.

Based on the reasoning above, the Tribunal concluded that it did not have jurisdiction to make a declaration that Ms. Richards had a reasonable excuse for not attending the medical appointment with Dr. McGill. Consequently, Ms. Richards' application for a declaration was refused.

Orders

Orders of the court

The Tribunal does not have jurisdiction to make a declaration that Ms Richards has a reasonable excuse for not attending a medical appointment with Dr McGill on 30 October 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 57 of the SRC Act provides, in part: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.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.The Tribunal’s power to review decisions made under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal’s power to review a decision depends upon a grant of power by an enactment. Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth), (“the AAT Act”) provides:(1)An enactment may provide that applications may be made to the Tribunal: (a)for review of decisions made in the exercise of powers conferred by that enactment; or (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. Section 64 of the SRC Act provides that a claimant may apply to the Tribunal for a review of a “reviewable decision”. “Reviewable decision” is defined in subsection 60(1) to include a decision made under section 62. Section 62 provides for Comcare to make a decision reconsidering a “determination” made by it. “Determination” is defined in subsection 60(1) to mean “a determination, decision or requirement” made under specified sections of the Act. It is to be noted that section 57 is not included in the specified sections.ISSUES FOR DETERMINATION The following issues arise.(1) Does the Tribunal have jurisdiction to make the declaration sought?(2) If so, should such a declaration be made?MS RICHARDS’ ARGUMENT Counsel for Ms Richards put that the only basis for seeking the declaration was that she has been assessed by eleven doctors on behalf of her employer and Comcare in relation to her claim and that two of those doctors were rheumatologists other than Dr McGill. It was put that she had been examined by two rheumatologists of her choice, by one at the request of her employer and by one at the request of Comcare. Reports were available to Comcare from all these practitioners. Ms Richards does not object to being re-examined by either the rheumatologist she had attended at the request of her employer or the rheumatologist she attended at the request of Comcare. However it was argued that she had a reasonable excuse to refuse to attend an appointment with Dr McGill as she has not been examined by him previously. Counsel argued that the making of the appointment with Dr McGill suggested that Comcare was engaging in “doctor-shopping”.CONSIDERATIONIssue 1: Does the Tribunal have jurisdiction to make the declaration sought?

Ratio Decidendi

Legal Principle Established

Ms Richards does not object to being re-examined by either the rheumatologist she had attended at the request of her employer or the rheumatologist she attended at the request of Comcare. However it was argued that she had a reasonable excuse to refuse to attend an appointment with Dr McGill as she has not been examined by him previously. Counsel argued that the making of the appointment with Dr McGill suggested that Comcare was engaging in “doctor-shopping”.CONSIDERATIONIssue 1: Does the Tribunal have jurisdiction to make the declaration sought? In Australian Postal Corporation v Forgie (in her capacity as Deputy President of the Administrative Appeals Tribunal) and Another[1] the Full Court of the Federal Court considered the Tribunal’s jurisdiction to review a decision made under subsection 37(7) of the SRC Act, which provides:Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, 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 employee begins to undertake the program.[1] [2003] FCAFC 223. The Full Court concluded:[86] This is a case in which the express words of the statute must govern the outcome. Section 37(7) of the SRC Act is a provision which requires a “determination” within the meaning of s 60(1) to be made. An employee can request a reconsideration of such a “determination” under s 62, which is what Mr Long did in this case. This resulted in a Senior Claims Manager at Australia Post making a “reviewable decision” on 15 July 2002[87] Pursuant to s 64, the Tribunal has jurisdiction to review “reviewable decisions” under the SRC Act. The Tribunal, therefore, has jurisdiction to hear Mr Long’s application. This will require the tribunal to assess whether Mr Long has: (1) refused or fail to comply with his rehabilitation program; and (2) whether or not he had a reasonable excuse for doing so. In reaching this conclusion, the Full Court had cause to consider the provisions of subsection 57(2) of the SRC Act (see above) as it was argued that the Court had previously held that the Tribunal did not have jurisdiction to review action under this subsection, which is worded similarly to subsection 37(7). The Full Court affirmed the view that the suspension of rights under s 57(2) did not require a decision of an administrative character made under an enactment.[2] It said:[73] Thus it is said there is no policy or principle to justify a distinction being drawn between s 37(7) and s 57(2), so that it would not be expected that merits review was intended in one case and not in the other. The short answer to this submission is that s 37 is specified in the s 60(1) definition of “determination” as one of the sections under which there can be a determination. Section 57, however, is not listed in this way. It is excluded from the definition in s 60(1). Accordingly, although both sections have a similar structure, the presence of one and the absence of the other from the definition of “determination” is a clear indication that the legislature intended them to be treated differently the purposes of the availability of merits review before the Tribunal.[2] The Federal Court so held in Buck v Comcare (1966) 66 FCR 359.

Division	GENERAL DIVISION
File Number	2015/3204
Re	Kirrilly Richards
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President J W Constance
Date	23 October 2015
Date of written reasons	11 January 2016
Place	Sydney