Rodriguez and Telstra Corporation Limited - [2002] AATA 1224

DIRECTION AND REASONS FOR DIRECTION [2002] AATA 1224

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/946, Q2002/111

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GABRIEL RODRIGUEZ
  Applicant
           And    TELSTRA CORPORATION LIMITED
  Respondent

DIRECTIONS

Tribunal Senior Member KL Beddoe

Date27 November 2002
PlaceBrisbane

Decision In relation to Application Q2002/111 I direct that: (a) section 57 of the Safety Rehabilitation and Compensation Act 1988 does not have the effect of suspending the proceedings; (b) the application be listed for hearing in February 2003; and (c) both parties have liberty to apply for directions. In relation to Application Q2001/946 I direct that these proceedings be suspended by operation of section 57 of the Safety Rehabilitation and Compensation Act 1988 until: (a) the applicant attends for the required medical examination; or (b) the requirement to attend for medical examination is withdrawn; and (c) liberty to apply is reserved to both parties.

(Sgd) K L Beddoe
Senior Member
CATCHWORDS
WORKERS COMPENSATION – required medical examination - whether reasonable excuse for failing to attend appointment – whether proceedings suspended
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
Re Rodriguez and Telstra (AAT No 13375, 16 October 1998)
Rodriguez v Telstra [1999] FCA 1400
Re Rodriguez and Telstra [2001] AATA 620
Rodriguez v Telstra [2002] FCA 30
Re Trajkovski and Telstra (1997) 49 ALD 159
Re Leonard and Comcare [2000] AATA 780
Re Pepper and Comcare (AAT No 10339, 4 August 1995)
Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51

REASONS FOR DIRECTION

27 November 2002 Senior Member KL Beddoe

The parties sought directions as to the future conduct of these applications.
In particular, the respondent submitted that the proceedings in both matters were suspended because of the operation of section 57 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
Section 57 provides that the relevant authority (as defined) may require an employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority. The section also provides (section 57(2)) that where an employee refuses or fails, without reasonable excuse, to undergo a required medical examination then the right to compensation and pending proceedings are suspended until the medical examination takes place.
In relation to application Q2002/111, the applicant submitted:
(a)that it is not open to the Tribunal to reconsider whether the applicant is entitled to compensation for the period 1 July 1994 to 1 September 1998;
(b)whether the proceedings in each application are suspended because of the delegate's decision; and
(c)whether Dr Reddan can give evidence in view of her evidence before the previous Tribunal.
At the directions hearing Mr Hampson QC with Mr Roche appeared for the applicant and Mr Dickson appeared for the respondent. The Tribunal had before it:
(a)documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
(b)part of the transcript of proceedings before Kiefel J on 6 February 2002; and
(c)affidavits of Paul Gregory Johnston and Kevin Patrick Standish both sworn 18 October 2002.
No oral evidence was given. No evidence was presented for the applicant.
It is necessary that I briefly outline the history of the first application.
The applicant sought review of decisions of the respondent which were heard by the Tribunal (Senior Member Muller) and subsequently an appeal by the Federal Court (Spender J). The appeals were allowed, the Federal Court ordering that the decision of the Tribunal rejecting the claim for major depressive disorder be set aside. The other appeals were dismissed. In relation to the set aside decision, Spender J ordered a re-hearing.
A reconstituted Tribunal (Forgie DP, Dr Kennedy and Miss Brennan, Members) considered the remitted matter afresh and on 29 June 2001 set aside the decision under review, substituting the following decision:
(a)the applicant's major depressive disorder was an injury as defined from 1 July 1994 to 1 September 1998;
(b)the applicant was totally incapacitated for work as a result of the major depressive disorder from and including 1 July 1994 to 1 September 1998; and
(c)there was no reviewable decision as to liability under sections 24 and 27 of the Act.
The applicant appealed to the Federal Court but only in relation to the cut-off of liability after 1 September 1998. There was no appeal as to other aspects of the Tribunal's decision.
On 25 January 2002 the Federal Court (Kiefel J) upheld the appeal and ordered that the Tribunal's decision of 29 June 2001 be set aside and the matter remitted to the Tribunal, differently constituted, for reconsideration according to law. The basis of her Honour's decision was that there was no probative evidence to support the Tribunal's decision to impose the cut-off date of 1 September 1998.
On 6 February 2002, Kiefel J vacated her order made on 25 January 2002 and made new orders in these terms (as per transcript at page 73):
"(1)that the order made by the Court on 25 January 2002 setting aside the decision below and ordering the matter to be remitted to the Tribunal for reconsideration be vacated;
(2)in lieu thereof it be ordered that the Tribunal's determination dated 29 June 2001 be affirmed, but that the question whether the injury and disorder continued in existence past 1 September 1998 be remitted to the Tribunal differently constituted for reconsideration."
At page 67, Kiefel J had explained the proposed order as follows:
"Yes, but another way may be that I considered maybe to order that the Tribunal's determination as expressed in the determination be affirmed but the question whether the injury and disorder continued in existence past 1 September 1998 be remitted."
I note that page 72 of the transcript of 6 February 2002 is not before me.
On 22 March 2002 a senior claims officer at GIO General Ltd, apparently acting as agent for the relevant authority, sent the applicant a notice purportedly in accordance with section 57 of the Act requiring attendance for a further medical examination by Dr Reddan, consultant psychiatrist, on 22 May 2002.
On 16 May 2002 the applicant's solicitors confirmed previous advice that the applicant refused to be further examined by Dr Reddan and requested "an alternative panel". The reference to a panel is a reference to a list of names of specialists nominated by the respondent from which the applicant would select a doctor to conduct the examination. The applicant's solicitors indicated the applicant would attend for examination by the selected doctor.
By letter dated 21 May 2002 the applicant's solicitors set out the basis of the applicant's objection to a further examination by Dr Reddan. It was claimed that re-examination by Dr Reddan may prejudice the claim, including, but not limited to, Dr Reddan's oral evidence given to the Federal Court. I do not know what was the nature of the evidence given by Dr Reddan to the Federal Court, however, I am prepared to assume that the evidence was not in the applicant's favour. The basis of the applicant's objection was apparently set out in a "without prejudice" letter by the applicant's solicitors. I have not seen that letter.
By letter dated 24 May 2002, GIO purported to suspend the proceedings in the Tribunal relying on section 57 of the Act and without regard to the orders of the Federal Court.
On 10 July 2002 the respondent's solicitors gave notice that they required the applicant to provide evidence to support his assertion that he had reasonable excuse for refusing to undergo examination by Dr Reddan, and that he be available for cross-examination. By letter dated 30 August 2002 the applicant's solicitors advised the respondent "We do not intend to have our client swear an Affidavit with regards to his refusal to see Dr Reddan". The solicitors relied on discussions at a conference before Conference Registrar Rogers and submissions to be made to the Tribunal. What may have transpired before the Registrar is not before me (section 34 Administrative Appeals Tribunal Act 1975).
The matters have proceeded in the Tribunal notwithstanding the assertion, on behalf of the respondent, that the proceedings are suspended. I take the view that it is a matter for the Tribunal to decide whether section 57 of the Act operates, of its own force, because the applicant did not have reasonable excuse for refusing to attend the required medical examination. That is not to assert that the Tribunal has a jurisdiction to review a purported decision under section 57 but to assert that where proceedings are on foot in the Tribunal in relation to a reviewable decision then it is for the Tribunal to decide whether there was reasonable excuse in terms of section 57 (Re Trajkovski and Telstra (1997) 49 ALD 159 and Re Leonard and Comcare [2000] AATA 780).
Dr Reddan examined the applicant, at the respondent's request, in June 2000, that is, after the first hearing in the Tribunal (Senior Member Muller) and the first proceedings in the Federal Court (Spender J). Dr Reddan provided reports and gave evidence before the Tribunal at the second hearing (Forgie DP, Dr Kennedy and Ms Brennan, Members).
The matters to be heard relate to the matter remitted for re-hearing by Kiefel J, that is, liability for compensation from 1 September 1998 and the new claim for permanent impairment and economic loss.
I was told that the applicant has been examined and/or treated by four psychiatrists who have reported on his condition and who, I assume, are available to give evidence. It was not suggested, and conceded for the applicant, that there has not been any reports obtained by the respondent as to the claim for permanent impairment and economic loss.
Because of the concession for the applicant I have proceeded on the basis that the applicant's unknown excuse for not attending for further examination by Dr Reddan only relates to the continuing liability under section 14 of the Act from 1 September 1998. I accept that the applicant may perceive that Dr Reddan may have an opinion which is contrary to his interest in the section 14 matter but I do not accept that such a perception is a reasonable excuse for not attending a required medical examination.
There is, however, an objective conclusion open in this case which I consider does afford reasonable excuse for not attending the required examination.
The section 14 matter proceeded before the previous Tribunal on the basis of medical reports and evidence which included Dr Reddan's reports and evidence based on an examination in June 2000. The respondent has not suggested that there is some forensic difficulty whereby that evidence cannot be used in a re-hearing albeit that the applicant submits faintly that Dr Reddan should no longer be heard. I reject any suggestion that the Tribunal constituted to re-hear this matter should not hear evidence from Dr Reddan.
I have come to a similar conclusion, in the section 14 matter, as I came to in Re Pepper and Comcare (AAT No 10339, 4 August 1995). There is an abundance of material before the Tribunal from four psychiatrists. Whether there needs to be further reports is a matter for the parties. However, I am satisfied that there does not need to be a further examination of the applicant for the purpose of a further or updated medico-legal report. I adopt the sentiments of what I said in Re Pepper at paragraph 16.
I am satisfied and find that the applicant had reasonable excuse for not attending for another examination by Dr Reddan in the section 14 matter.
In application Q2001/946, which is the application for review of the decision regarding permanent impairment and economic loss, the applicant concedes the respondent is entitled to obtain a medical opinion to determine the applicant's permanent impairment. There is, however, no concession that a further medical examination is necessary.
Given that the respondent has not previously required a medical examination in relation to this matter, it seems to me to be beyond argument that the respondent is entitled to require such an examination. While it may seem irregular that the examination is being required after the reviewable decision was made I accept that it is open to the respondent to do so.
The applicant has not advanced any reason or excuse as to why such an examination should not take place. The applicant failed to attend for examination by Dr Reddan and has not asserted a reasonable excuse for the non-attendance and I so find.
Consequently, the proceedings in application Q2001/946 must be treated as suspended until the applicant attends for examination or until the requirement to attend for examination is withdrawn. If the applicant indicates he is prepared to attend for examination, as required, the respondent should arrange a new appointment with Dr Reddan, or another medical practitioner chosen by the respondent. I do not accept that the Act requires the respondent to submit a panel of names to the applicant.
In application Q2002/111 I make the following directions:
(a)section 57 of the Act does not have the effect of suspending the proceedings;
(b)the application be listed for hearing in February 2003; and
(c)both parties have liberty to apply for directions.
In application Q2001/946 the proceedings are suspended until I am satisfied that the applicant has attended for the required medical examination or that requirement has been withdrawn.
In application Q2002/111 the Federal Court remitted the matter to a differently constituted Tribunal for reconsideration only in relation to the question "whether the injury and disorder continued in existence past 1 September 1998".
Kiefel J did not make an order in terms of section 44(5) of the Administrative Appeals Tribunal Act 1975, her Honour observing that it is open to the Tribunal to hear further evidence. It will be necessary for the Tribunal to take evidence relevant to the issue before the Tribunal, there being no order suggesting otherwise, and bearing in mind that the Tribunal has been reconstituted (Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51). It will be open to the parties to rely on relevant evidence before the previous Tribunal.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the direction herein of Senior Member KL Beddoe
Signed:         .....................................................................................
  Associate
Date of Directions Hearing      22 October 2002
Date of Direction  27 November 2002
Counsel for the Applicant        Mr Hampson QC with Mr Roche
Solicitor for the Applicant         Shine Roche McGowan, Solicitors
Counsel for the Respondent    Mr Dickson
Solicitor for the Respondent    Standish Partners, Solicitors