Rutherford and Comcare (Compensation)
[2018] AATA 3628
•26 September 2018
Rutherford and Comcare (Compensation) [2018] AATA 3628 (26 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1736, 2018/2189
Re:Lynette Rutherford
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:26 September 2018
Place:Canberra
Ms Rutherford’s objection to inspection of the documents in these two matters returned under summons up to the date of this decision is denied.
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Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE – compensation – access to documents returned under summons – medical evidence – principles governing access – relevance – privacy - incomplete records – applicant’s application for material to be excluded from inspection is denied
Legislation
Administrative Appeals Tribunal Act 1975, ss 38AA, 39, 40A, 40B
Safety, Rehabilitation and Compensation Act 1988, s 14
Cases
Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250
Comcare v Maganga (2008) 101 ALD 68
Hunt v Wark (1985) 40 SASR 489 at 493
Trade Practices Commission v Arnotts [1989] FCA 248
ZFCC and Comcare [2018] AATA 1358
REASONS FOR DECISION
Mark Hyman, Member
26 September 2018
This matter involves access by the respondent, Comcare, to documents involving the applicant, Ms Lynette Rutherford. Ms Rutherford has injuries for which Comcare has previously accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). More recently claims by Ms Rutherford in respect of conditions which she says arose from aspects of her treatment or rehabilitation for those accepted injuries have been denied by Comcare, and Ms Rutherford has two matters before the tribunal arising from her application for review of those decisions.
In one of the matters for which she is seeking review (2018/1736) Ms Rutherford has obtained a diagnosis of her condition. Comcare has not yet accepted that diagnosis, and proposes to send Ms Rutherford to a specialist to have that and competing diagnoses tested. Ms Rutherford also has a second matter before the tribunal, involving a claim for a musculoskeletal injury. As part of the general preparation for the case, and also for the purpose of informing its diagnostic specialist in the first matter, Comcare has sought documents under summons from Ms Rutherford’s treating doctors, covering an extended period. Ms Rutherford objects to the documents being inspected by Comcare, on the grounds that most of them are not relevant to the matters before the tribunal, and in one case, that the record returned under summons is incomplete.
ISSUE
The only issue before the tribunal at this stage of the proceedings is whether Comcare should be allowed to inspect the summoned documents.
Whether the documents are relevant to a matter clearly depends on the issues to be resolved in the matter. At this stage the parties are yet to settle the outlines of their case. A person’s medical records, in general, can be expected to provide at the very least context and background to a person’s compensation claim, unless those records have been generated in respect of something totally unrelated to the kind of injury being claimed. Ms Rutherford, a self-represented applicant, has not identified her view of the issues before the tribunal; Comcare has submitted a statement of issues, and the first issue in respect of matter 2018/1736 is the diagnosis of the condition for which Ms Rutherford is claiming. While it would be inappropriate for me to identify with any finality at this stage the issues to be resolved by the tribunal, I believe it is reasonable to assume that the diagnosis of the applicant’s condition will be among them.
Ms Rutherford has obtained a medical opinion that she suffers from a condition identified as “serotonin syndrome”, brought on by her having taken amitriptyline prescribed in respect of a compensable injury accepted under the SRC Act, in combination with other medication. Comcare has found a specialist with general diagnostic capacity, and proposes to send Ms Rutherford to him for an opinion. Comcare seeks access to Ms Rutherford’s medical records so that the doctor can be fully briefed on Ms Rutherford’s medical history. Ms Rutherford says that much of her medical history is irrelevant to the matters to be resolved, and she applies that argument to both matters under review.
In one case Ms Rutherford insists that a record from one provider is incomplete and therefore inaccurate and should not be made available to Comcare.
This matter was considered at a telephone directions hearing on 27 July 2018. Both parties appeared by telephone, with Ms Sama Khan appearing for Comcare. The tribunal decided to determine the question of access to the documents on the basis of the arguments made at that hearing, the documents already before the tribunal in these matters, and the documents returned under summons.
THE SUMMONED DOCUMENTS
Section 40A of the Administrative Tribunal Act 1975 (the AAT Act) allows the tribunal to summon a person to appear before the tribunal or to produce documents or other materials. Section 40B then gives the tribunal a discretion to grant access to documents so produced. Section 39 obliges the tribunal to ensure that parties are given a reasonable opportunity to present their case and, in particular, to inspect documents to which the tribunal proposes to have regard in deciding a matter.
Comcare requested on 31 May 2018 that summons be issued to 22 medical providers – doctors, practices or hospitals - and summons were issued accordingly, with documents to be produced by 2 July 2018. The terms of the summons were as follows:
All files, records of treatment, records of any medical investigations including x-rays and the like, notes of visits, interview notes, patients notes, correspondence, copy of correspondence, referral letters, reports and letters from other doctors, patient history cards from all overseas practitioners seen relating to Lynette Rutherford… [sic; original emphasis; Ms Rutherford’s date of birth omitted]
Once documents were produced, access orders were signed giving Ms Rutherford first right to inspect the documents, with Comcare allowed to inspect the documents a fortnight later. The access orders note that a party may object in writing to the other party having access. Ms Rutherford expressed her view that many of the providers would have no information or no relevant information about her, and nominated ten further providers, who she said would hold more relevant information. Comcare requested summons to those providers and summons were issued in terms identical to the above, with documents to be produced by 16 July 2018. No documents have been returned under those summons as at the date of this decision.
Ms Rutherford has objected to Comcare having access to the records of the following providers:
·Hawker Medical Practice
·Idameneo (No 123) Pty Ltd;
·Gordon Family Practice;
·Dr Wilson Lo;
·Orthopaedics ACT/Woden Specialist Medical Centre;
·Dr Maurizio Damiani;
·Dr Anna Dorai-Raj
·Dr Peter Jones;
·Dr Mary-Ann Kulh;
·Dr Colin Andrews;
·Clinic 88;
·Dr Carolyn Hawkins;
·Dr Robert Schmidli
·Calvary Hospital;
·The Canberra Hospital; and
·Medicare.
The objection for all of the above bar one is based on Ms Rutherford’s view that the information is not relevant; the objection in the case of the Medicare record is that it is incomplete and therefore inaccurate. As noted above, a number of other providers are yet to produce documents, and Ms Rutherford has signalled that she may also object to access to their documents once they are produced.
CONSIDERATION
I have examined the documents to which Ms Rutherford has raised objection (the contested documents).
Access to relevant material is plainly critical to procedural fairness in the tribunal. Subsection 39(1) of the AAT Act requires that the tribunal ensure that parties to a proceeding are given every reasonable opportunity to present their case, and in particular, to inspect documents to which the tribunal proposes to have regard in reaching a decision. The reach of that provision is clearly limited, however, to documents that are relevant to the matter, as the tribunal will inevitably limit its attention to such documents. But at this stage of a matter a party is still putting its case together and identifying evidence that may be relevant; the net is therefore appropriately cast broadly rather than narrowly and a party should not lightly be denied access to material that may prove relevant.
The leading case on access to summoned documents in the tribunal is Comcare v Maganga (2008) 101 ALD 68 (Maganga). In that case Bennett J noted that:
·a party seeking to inspect documents does not need to demonstrate that they exist (at [34]);
·a party seeking to inspect documents does not need to show that they are relevant; rather, the basis for inspection of documents is that there is a real possibility that they may assist in resolving matters before the tribunal (at [37]); and
·among the bases for allowing inspection is that the documents are apparently relevant, or on the subject matter of the proceedings, or might legitimately be used for cross-examination (at [38]).
These and other issues of relevance are also canvassed in Kennedy and Comcare [2014] AATA 369. Among the reasons cited for a decision allowing inspection of documents in court proceedings are “There must be some reason to suppose that the documents sought will be capable of being used ...” (Hunt v Wark (1985) 40 SASR 489 at 493); and that the documents “could reasonably be expected to throw light on some of the issues in the principal proceedings” (Trade Practices Commission v Arnotts [1989] FCA 248 at [41]). But a party is not allowed to use the summons power to trawl for documents on the off-chance that they may be useful (Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250.
In ZFCC and Comcare [2018] AATA 1358 (ZFCC) DP Humphries pointed to additional considerations that militate against the exclusion of medical evidence in particular. Thus it needs to be kept in mind that medical records are often in an abbreviated and technical form the meaning of which is unlikely to be apparent to a decision-maker who is not medically trained; that the connections between a symptom or observation and a medical condition may not always be apparent; and that a complete medical record may in any case sometimes be relevant to an applicant’s credit.
A decision giving access to documents must always balance considerations of the public interest in the administration of justice against other considerations, especially those going to the privacy of the applicant. It is privacy that appears to be one reason behind Ms Rutherford’s objections: she noted that there was no need, for example, for Comcare to have access to information about when she had her first baby. Ms Rutherford also argued for a narrow approach to issues of relevance, so that as her current musculoskeletal claim is for a back injury, information about prior shoulder and arm injuries should be excluded. She also noted that many of the records would already be held by Comcare, as they related to treatment paid for by Comcare in respect of accepted injuries under the SRC Act.
From the privacy point of view, it should be noted that at this stage of the proceedings the circle of those to whom the material is released is narrow, and the use of the material at later stages of the proceedings – for example in the hearing itself – can always be subject to further challenge. And as DP Humphries pointed out in ZFCC, an applicant who wishes to have a matter determined in the tribunal has already made a decision to sacrifice some degree of privacy in the pursuit of that goal.
In this matter there are two decisions under review. In one of them Ms Rutherford has arrived at what she understands to be the correct diagnosis of her condition, but Comcare has not at this point accepted that diagnosis. It is entirely appropriate for Comcare, as respondent, to collect a very complete picture of Ms Rutherford’s medical history so that the expert practitioner by whom she is to be examined can have the benefit of all the available contextual information. It is not clear to me how any of the medical history, no matter how remote it appears to be from the conditions for which the claims have been agitated, can be excluded from inspection as irrelevant, in these circumstances. Similarly, it is not appropriate that the scope of Ms Rutherford’s musculoskeletal claim, which is related to her back, should prevent access to the history of prior injuries to other parts of the musculoskeletal system. It is a matter for appropriate medical experts to decide whether previous and new injuries are related or not.
It is undoubtedly the case that some of the records in the contested documents will already appear in Comcare’s records. Whether that is so in any given instance can only be decided through inspection, and no harm to Ms Rutherford’s interests, including her privacy, can come from inspection of documents Comcare already has in its possession.
At a general level, I find no basis in Ms Rutherford’s arguments for denying access to the contested documents. My detailed inspection of them has led me to the following specific conclusions:
·Hawker Medical Practice produced clinical notes; Ms Rutherford examined these materials and produced her own redacted version, in which anything she regarded as not relevant had been excised; in each case the redaction was accompanied by text along the lines of “REDACTED Nothing relevant to serotonin syndrome or Fit-to-Manage” (Fit-to-Manage is the rehabilitation provider at which Ms Rutherford maintains that she sustained the injury she claims in matter 2018/2189). An example of the excised material is a reference to Ms Rutherford’s smoking history and current smoking rate. Ms Rutherford’s concept of what is relevant in matter 2018/1736 assumes that her diagnosis – serotonin syndrome – is accepted, and also that she has an expert appreciation of what might be medically relevant. Neither assumption is a reasonable basis for denying access, especially at this early stage of the process of preparing for hearing; I can see no reason why Comcare should not have access to the medical history that appears in these papers.
·Idameneo (No 123) Pty Ltd produced records that included a detailed patient medical history, pathology tests, referrals, specialists’ reports, other test results; there is no reason to deny access to any of this material.
·Gordon Family Practice records include pathology results, consultation notes, imaging reports, referrals, specialists’ reports; there is no reason to deny access to any of this material.
·Dr Wilson Lo’s records include specialists’ reports, imaging reports, consultation notes and records associated with hospitalisation; there is no reason to deny access to any of this material.
·Orthopaedics ACT/Woden Specialist Medical Centre records include specialists’ reports and referrals and documentation relating to hospital admissions and procedures; there is no reason to deny access to any of this material.
·Dr Maurizio Damiani produced reports including specialists’ reports, clinical notes, pathology reports, imaging results and reports and referrals; there is no reason to deny access to any of this material.
·Dr Anna Dorai-Raj provided records that include specialists’ reports, pathology test results and notes on consultations; there is no reason to deny access to any of this material.
·Dr Peter Jones produced a single report; there is no reason to deny access to this material.
·Dr Mary-Ann Kulh has provided a report and an open letter; there is no reason to deny access to this material.
·Dr Colin Andrews’ records include specialist reports, results of nerve conduction studies and imaging results; there is no reason to deny access to any of this material.
·Clinic 88 produced records that include a detailed patient history with clinical notes and extensive correspondence with Comcare; there is no reason to deny access to any of this material.
·Dr Robert Schmidli produced a specialist report and pathology test results; there is no reason to deny access to this material.
·Calvary Hospital records include the records of admissions going back several decades, including for urinary and gallbladder issues, for the birth of a child, for an emergency visit for low back pain; there is no reason to deny access to any of this material.
·The Canberra Hospital’s records include extensive pathology results and a large collection of outpatient records; there is no reason to deny access to any of this material.
The contested documents also include a Medicare record, which lists the medical consultations Ms Rutherford has undertaken since 1984 and pharmaceuticals prescribed under the Pharmaceutical Benefits Scheme (PBS) since 1991. Ms Rutherford asserts that access should be denied because the record is incomplete. I note that Comcare has consulted Medicare, which has confirmed the completeness of the record. But so far as the PBS data are concerned, Ms Rutherford seems likely to be right that the record is incomplete: there is a single prescription (in April 1997) between December 1996 and March 2000; this seems inconsistent with the pattern established by the rest of the record and with the remainder of the medical evidence. There are no prescriptions issued in 2005 and 2006 and only one in 2007. These patterns seem not impossible but surely they are unlikely; Ms Rutherford says they are wrong and she points to other elements which she says are wrong or missing. But the solution is not to deny access to the records. Rather, it is up to Comcare to seek to confirm and explain or else to have Medicare amend or supplement the record, if they wish it to be relied on or taken into account.
Ms Rutherford objected to inspection of material summoned from Dr Carolyn Hawkins, but apparently on the general basis that such information could not be relevant, that is, without herself having inspected documents. So far as I can determine, no documents have been returned by Dr Hawkins.
What the records that I have been able to inspect reveal is that Ms Rutherford has a complex medical history, involving a large number of different specialists and disciplines. That medical history will surely be of importance to the specialist physician whom Comcare engages for diagnostic purposes. It also should allow the inclusion of relevant materials in the documents submitted under section 38AA of the AAT Act so that the material before the tribunal allows me to obtain a comprehensive picture of the applicant’s medical history.
Ms Rutherford’s objection to inspection of the contested documents returned under summons up to the date of this decision is denied. Ms Rutherford retains the right, naturally, to object to Comcare having access to any further documents that might be returned under summons following the date of this decision.
27. I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
28.
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Associate
Dated: 26 September 2018
Date(s) of hearing: 26 July 2018 Applicant: In person
Solicitors for the Respondent:
McInnes Wilson Lawyers
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