Short v State of New South Wales (Hunter New England Local Health District)
[2024] NSWPIC 291
•31 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Short v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 291 |
| APPLICANT: | Caroline Short |
| RESPONDENT: | State of New South Wales (Hunter New England Local Health District) |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 31 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Procedural ruling; application for direction for production; sections 42 and 49 of the Personal Injury Commission Act 2020; rule 47 of the Personal Injury Commission Rules 2020; consideration of whether third party had failed to comply with a request made under an authority; whether documents had an apparent relevance; Waind v Hill and National Employers’ Mutual General Association Ltd applied; consideration of whether the documents would likely materially assist; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd and R v Saleam applied; Held – direction for production on psychologist granted; on exercise physiologist declined. |
| DETERMINATIONS MADE: | The Commission determines: 1. I grant leave for the respondent to issue a direction for production on Joanne Krause. 2. I decline leave for the respondent to issue a direction for production on Joe Harden. 3. Either party may lodge and serve an Application to Admit Late Documents attaching the material produced in accordance with order 1 above. 4. If there is any objection to the admission of further documents, the matter is to be listed before me for further teleconference. 5. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 29 September 2020 b. Body systems/parts: Psychiatric/psychological c. Method of assessment: Whole person impairment 6. The documents to be referred to the Medical Assessor are: a. The Application and attached documents; b. The Reply and attached documents, and c. Any Application to Admit Late Documents lodged in accordance with order 3 above, provided no objection is made to that material. 7. The above appointment is not to be arranged before 1 August 2024. |
STATEMENT OF REASONS
BACKGROUND
The issue before me is a narrow one concerning a procedural issue and thus the reasons provided will be concise whilst still dealing with the real issue in dispute between the parties.
Ms Short (the applicant) brings a claim for lump sum compensation arising out of a psychological injury suffered with the respondent. The only substantive issue in dispute between the parties is the degree of permanent impairment arising out of that injury, which is claimed by the applicant to be 19% whole person impairment. That is an issue that will be determined by a Medical Assessor.
The procedural issue before the Personal Injury Commission (Commission) concerns an application by the respondent to issue directions for production on a series of producers. That issue was raised in the Reply lodged by the respondent and the matter came before me at a preliminary conference on 9 May 2024. Extensive discussions occurred on that occasion but the parties were unable to agree. Due to time constraints, I issued a direction calling for written submissions concerning the issue. The matter was not listed for hearing and I am satisfied that the matter can be determined on the papers.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether directions for production can be issue on Joe Harden and Joanne Krause.
It is noted that this dispute only concerns the issue of directions for production, and not the admissibility of any evidence arising out of such a direction being issued and the relevant material being produced.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
The parties filed written submissions, consistent with discussions that occurred at the preliminary conference and a direction issued on the parties. The respondent’s submissions, which were provided first (as they are the party seeking the production of the material), attaches two annexures being a letter from the applicant’s solicitor, attaching an authority to release, and an email from the respondent’s insurer to the respondent’s legal representatives.
FINDINGS AND REASONS
The respondent initially sought the production of clinical records from four producers. Prior to the submissions being filed by the respondent, clinical notes of Dr Sally Lamber and Hunter River Medical Centre were produced under an authority provided by the applicant. The respondent seeks leave to issue directions for production on Joe Harden, an exercise physiologist who has treated the applicant, and Joanne Krause, psychologist.
I do not intend to set out the parties’ submissions which I have read and considered. I will refer to those submissions were relevant in my reasons below.
The respondent sought leave to file further submissions in reply on 23 May 2024. No such application was foreshadowed at the preliminary conference. The application was opposed by the applicant. I rejected the respondent’s application on the basis that the respondent had had sufficient opportunity to provide submissions. The application made by the respondent to issues has delayed the outcome of the dispute in the Commission; to further unnecessarily delay the resolution of the outcome by providing supplementary submissions would be inconsistent with the Commission’s guiding principle in s 42 of the Personal Injury Commission Act 2020 (the PIC Act).
The powers under the Act
The Commission has powers to require information contained in s 49 of the PIC Act. The section relevantly provides:
“(1) The Commission may give a direction in writing to any person (whether or not a party to proceedings before the Commission) requiring the person—
(a) to produce, at a time and place specified in the direction, specified documents in the possession of the person, or…
(5) The Commission may exercise powers under this section at the request of a party to proceedings before the Commission or of the Commission’s own motion.///
(7) The regulations or the Commission rules may make provision for or with respect to any of the following matters—(a) exempting specified kinds of documents or information from the operation of this section,
(b) specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,
(c) specifying cases and circumstances in which the Commission is not to exercise the Commission’s powers under this section.”Rule 47 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to s 49(7) above, and provides relevantly:
“(1) A non-presidential member to whom proceedings are referred may order or refuse to order the issue of a direction for production requested under rule 46(1)—
(a) at a teleconference in the proceedings, or
(b) in a special case and for the avoidance of injustice, subsequently.
(2) However, a direction for production of documents must not be issued if the party who requested the issue of the direction is entitled to be provided with the documents, or copies of the documents, under—
(a) in workers compensation proceedings—
(i) an obligation imposed on a worker, employer or insurer in relation to a claim, whether on request or otherwise, under the workers compensation legislation, or
(ii) an obligation under Part 7 of the 1987 Act, or any regulation, guideline, contract or arrangement made under the Part, if the documents are in the possession or control of the Nominal Insurer or an agent of the Nominal Insurer, or
(iii) an authority a worker has provided to the employer or insurer to obtain documents from a third party, unless the third party has failed to comply with the request, or special reasons prevented the employer or insurer from acting on the authority, or…(3) In deciding whether to order the issue of the direction for production, the non-presidential member may do any of the following—
(a) determine an objection by a party,
(b) direct the times for service of the direction and production by the producer,
(c) direct the making of access orders, including a first access order,
(d) provide for another matter the member thinks fit.”
The Commission has also issued a Procedural Direction concerning the issue of a direction for production: Procedural Direction PIC9 – Production of Information and Calling of Witnesses.
The relevant material in the Procedural Direction replicates the provisions of the PIC Rules.
Section 49 of the PIC Act is discretionary in nature: “the Commission may give a direction”. That discretion is supported by r 47 of the PIC Rules which also contains the discretionary “may”. There is, however, a mandatory prohibition on that discretion contained in r 47(2) of the PIC Rules, where the requesting party “is entitled to be provided with the documents” in certain circumstances. In present circumstances, r 49(2)(a)(iii) applies, as the respondent has been provided with an authority to obtain documents from a third party.
The respondent submits that the issues in dispute are whether the clinical notes are of relevance to the prospective Medical Assessor, and whether obtaining the clinical notes would be of prejudice to the applicant.
I do not agree with that assertion. The question of “apparent relevance” (no relevance, which is a higher standard) may come into the equation at some point. That question goes to discretionary factors. There is, however, first a statutory question to be answered as to whether an authority was provided to the respondent and either:
(a) the third party failed to comply with a request made under that authority, or
(b) special reasons prevented the insurer from acting on the authority.
The respondent has provided some material relevant to the above. The respondent had, at some point, been in receipt of signed authorities from the applicant. Attached to the respondent’s submissions is a signed authority dated 7 November 2023, which provides for a release for medical and personal information “that is relevant to my claimed injuries”. On 14 March 2024, the respondent wrote to the applicant indicating that the signed authorities were erroneous on the basis that they were not limited to the claimed psychological injury. A further authority was provided to be signed by the applicant related to “all records of any kind concerning my treatment to date with respect to my psychological injury”.
It appears that the respondent was of the view that the original signed authority was too broad. This may or may not be related to a direction provided iCare or SIRA, in a guideline that is not before me. I cannot accept that such a guideline exists or refer to or rely on it without it being place before me.
Like the applicant, I can see no relevant difference between the two authorities. The only difference is the reference in the later (apparently now the approved format) authority which refers to a psychological injury, rather than claimed injuries. The issue with that is that the claim is for a psychological injury and the producers are an exercise physiologist and a psychologist. There are issues with this in relation to each producer:
(a)for the former, it is questionable whether there would be any records relevant to the applicant’s psychological injury possessed by an exercise physiologist. I accept that the applicant referred to exercise physiologist in response to treatment and treating doctors, but it is not clear how that is connected to a claimed psychological injury. This tends towards a fishing expedition, and
(b)in relation to the clinical notes of the psychologist – she is undoubtedly treating a “claimed injury” which is a psychological injury. I am puzzled as to how the original authority could be said to be too broad or inappropriate (compared with the later authority) where the psychologist can only treat psychological injuries.
The above is relevant because the exception provided in the PIC Rules is where “the third party has failed to comply with the request”.
The applicant takes issue with the above noting that the respondent had a period of approximately five and a half months from the date of the letter of demand to the filing of the Application to obtain an appropriate authority, but did not do so. The applicant also submits that there is no evidence that the respondent attempted to use the original authorities.
I acknowledge all of the above. There is, however, evidence that the respondent has attempted to use the revised authorities and, based on the fact that the application is pressed, the producers have failed to produce. This enlivens the exception to the mandatory requirement that a direction for production not issue where an entitlement to access the documents already existed.
The respondent refers to the decision of Devenish v Kellock Pty Ltd [2021] NSWPIC 413 (Devenish). Those proceedings concerned a claim for medical expenses and a dispute about liability, not a claim for lump sum compensation where the only dispute is the degree of permanent impairment. The paragraphs referred to have no relevance on whether a direction for production should be issued. It was not part of the dispute in that case.
The dispute before the Commission is similar to a subpoena dispute. The Commission’s statutory process for obtaining evidence, either inter partes through a notice to produce or on a third party through a direction for production closely resembles, but is a less formal process than, a subpoena. Relevant authorities on the issue of a subpoena are, in that regard, largely apposite for the purposes of the question to be determined. The purpose of requiring production of documents was outlined in Waind v Hill and National Employers’ Mutual General Association Ltd (1978) 1 NSWLR 372 (Waind):
“The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.” (at 384E)
The test for issuing of a direction is not one of relevance, but apparent relevance. This is a lower standard than to justify the admission of the material into the proceedings (Matthews v SPI Electricity & Ors (Ruling No 27) [2013] VSC 483). The consideration also extends to whether the documents have a legitimate forensic purpose. That is, whether the information sought is reasonably likely to add, beyond speculation, to the relevant evidence in the case, and thereby assist with the issues between the parties (see, for example, ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9] and [14], and Waind at 384). There is a further requirement that the documents are ‘likely to materially assist’ the issuer’s case. In R v Saleam [1999] NSWCCA 86, the test for determining whether a party is required to produce documents was stated in the following terms:
“Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.” (at [11])
Clinical notes of Joanne Krause
The respondent’s submissions touch on the above, without reference to the relevant principles. The respondent addresses their submissions to relevance submitting that the clinical notes of Ms Krause are relevant to allow the Medical Assessor to draw a positive conclusion regarding the level of impairment, with reference to Devenish, cited above.
The applicant, in response, does not particularly address either producer, but objects to the directions being issued on a general basis that the respondent had sufficient opportunity to seek the documents, that there is no evidence that either producer failed to comply with the request, and that the Commission operates in a front-end loaded system. There is no special reason to allow the issue of the direction in present circumstances. The applicant also suggested that the question of relevance plays no part in the consideration, and that only becomes a valid consideration if there is a special reason why the respondent could not act on the authority given.
I have explained above my interpretation of the PIC Act and PIC Rules surrounding the issue of a direction for production. I agree that the question of relevance (apparent relevance) does not come into play until there is a valid exception that the respondent can rely upon. However, here there exists a valid exception in that the two producers have failed to comply with the authorities provided.
The applicant’s submissions tend more on a procedural fairness or natural justice issue, in that the respondent had ample opportunity to obtain the material but failed to do so. This is where s 42 of the PIC Act becomes relevant, requiring me to have effect to the “guiding principle” when I exercise any power or interpret any provision of the PIC Act or PIC Rules. The guiding principle is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.
The real issue in the proceedings concerns the degree of permanent impairment of Ms Short. The issue of a direction for production will impact on the quick and cost effective resolution of that issue – it will delay the appointment for assessment before a Medical Assessor, and will involve cost to the parties and the Commission. It may also invite further disputation from the parties concerning the admissibility of any evidence that is ultimately produced (noting that the question at this stage only concerns the issue of the direction).
Those factors must be balanced against what is “just”, a nebulous term. The respondent submits that it would be procedurally unfair if the directions were not to issue. The applicant submits that the evidence could be severely prejudicial as no doctor has been able to comment on it or have it tested by a medical expert.
The assessment of permanent impairment, in a psychological injury case, is based on the psychiatric impairment rating scales (PIRS). These are six scales that have a range (from 1-5) of impairment in different areas of functioning. The assessment of impairment takes place on the day of examination taking into account the history given by the worker, the material before the Medical Assessor, and the examples provided in the PIRS. Up to date clinical material, particularly from a treating psychologist, may have some relevance to the consideration of a number of the PIRS.
Relevant to my consideration is the timing of the provision of the amended authorities and the commencement of the proceedings in the Commission. Those authorities were provided on 9 April 2024, after being requested on 14 March 2024. The proceedings in the Commission were commenced two days later. Whilst the applicant is free to commence proceedings at any point (once all relevant claim and claim determination provisions have been complied with), the respondent would clearly not have had the opportunity to rely on the authorities prior to the commencement of proceedings. This is not a criticism of the applicant, but merely an observation relating to the timing of the commencement of the proceedings.
I am satisfied that the clinical notes of Joanne Krause have an apparent relevance to the issues in dispute in these proceedings and are likely to materially assist the Medical Assessor in his or her assessment of impairment.
In order to mitigate any delay which may prejudice the applicant in a quick resolution of the proceedings, I will set down a timetable for the issue of the direction for production, access to the material, and the filing of any evidence arising out of the production.
Clinical notes of Joe Harden
Joe Harden is an exercise physiologist. The respondent acknowledges that this is not a typical form of treatment for a psychological injury, but refers to the applicant identifying Mr Harden as a treater in a response to particulars. For abundant clarity, the applicant states: “She has undertaken exercise physiology with Joe Harden…”. This does not indicate that it relates to the psychological injury before the Commission, but rather that she undertakes physiology.
The respondent submits that the attendance on exercise physiology is relevant to the PIRS of “social and recreational activities” and “concentration, persistence and pace”. The respondent suggests that the clinical records will assist to corroborate observations made by the Medical Assessor on examination.
I do not accept that the clinical notes of an exercise physiologist have an apparent relevance to a psychological injury claim. It cannot be said that treatment with a health practitioner could be a social or recreational activity. It is a treatment, and the respondent has not pointed to any evidence to connect the attendance to the psychological injury in dispute. The same can be said for concentration, persistence and pace, which concerns following complex instructions. Again, there is no apparent relevance to the material in this regard. The exercise physiologist would not be providing “operating manuals” or “building plans” to the applicant, or anything near that standard of concentration required.
I am of the view that seeking the material possessed by Joe Harden is nothing more than a fishing expedition; that is to allow the respondent to consider whether the material may make a case, not that there is, on the face of it, an apparent relevance to the material. Accordingly, I decline to issue the direction for production on Joe Harden.
SUMMARY
I grant leave for the respondent to issue a direction for production on Joanne Krause.
I decline leave for the respondent to issue a direction for production on Joe Harden.
Given there is no dispute as to liability, I will make the necessary orders for the matter to be referred to a Medical Assessor for assessment, subject to the procedural requirements concerning the issue of the direction for production and material lodged pursuant to that direction.
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