Steele and Pacific National Pty Limited
[2009] AATA 321
•1 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 321
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0094
GENERAL ADMINISTRATIVE DIVISION ) Re PETER STEELE Applicant
And
PACIFIC NATIONAL PTY LIMITED
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date1 May 2009
PlaceAdelaide
Decision For reasons given orally at the hearing, the tribunal directs that:
1. on or before 22 May 2009 the applicant is to file and serve particulars detailing any direction or supervision he obtains or requires in relation to activities of daily living; and
2. the conciliation conference to be held on 12 June 2009 is vacated.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – claim for permanent impairment – applicant previously examined by two psychiatrists – request to attend medical appointment by a third psychiatrist – whether number of witnesses would be limited – circumstances where tribunal can decide whether excuse not to attend medical appointment is reasonable – held that proceedings should not be stayed – direction that applicant provide further particulars.
PRACTICE AND PROCEDURE – Compensation – Commonwealth employee refusing to undergo prospective medical examination required by Comcare – reasonable excuse – whether AAT should limit number of medical witnesses – held that AAT will not make decision tantamount to declaration.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 57
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A and 33
Australian Postal Corporation v Forgie (2003) 130 FCR 279
McCutcheon v Grimmond (1986) 40 SASR 404
Re Bessell and Telstra Corporation Limited (1994) 35 ALD 660
Re Brice and Comcare (2007) 96 ALD 171
Re Funk and Military and Rehabilitation and Compensation Commission [2008] AATA 1044
Re Leonard and Comcare (2000) 64 ALD 197
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
Zielinski v WorkCover Corporation/EML SA (DP World Adelaide Pty Ltd) [2007] SAWCT 49
REASONS FOR ORAL DECISION
1 May 2009 Deputy President D G Jarvis 1. The following is an edited version of the reasons I gave orally for my decision in this matter.
2. The applicant has applied to this tribunal to review a decision by the respondent assessing the degree of permanent impairment resulting from an injury sustained in the course of employment. The respondent arranged for the applicant to be examined by a psychiatrist, Dr Ewer, on 5 May 2009, in order to obtain a medical report in relation to the applicant’s application. The applicant has sought to be relieved from having to attend that appointment on the grounds that he has a reasonable excuse not to attend.
3. The respondent has requested orders that the within proceedings be stayed until:
(a)the applicant attends the above medical appointment; and
(b)the applicant files and serves a signed statement detailing any direction and supervision he obtains in activities of daily living.
Applicant’s objection to attending medical appointment
4. I decline to grant the applicant’s request. The applicant contended that he had a reasonable excuse for not attending the examination. This tribunal has no jurisdiction to in effect make a declaration as to whether or not an employee has a reasonable excuse for not attending some future medical examination arranged by the respondent.
5. In any event, there is insufficient material before me to decide that the applicant has a reasonable excuse. The applicant lodged written submissions in support of his request. These submissions in many areas assume that the focus of the hearing in this tribunal will be the question of whether the reviewable decision was inconsistent with the medical evidence before the decision-maker. However, proceedings in this tribunal are a hearing de novo; each party may adduce further evidence, and the tribunal’s decision will be based upon the evidence before it, and not on the evidence before the relevant decision-maker : Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286.
6. It was next contended for the applicant that the provision authorising the respondent to arrange the medical examination, namely s 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) entitles the respondent to require the applicant “to undergo an examination by one legally qualified medical practitioner” nominated by it. In the present matter, the respondent had previously arranged for the applicant to be examined by two other psychiatrists, and now seeks to have the applicant examined by a third psychiatrist whom he has never previously seen. I do not accept this argument. In a number of earlier decisions, this tribunal has held that the reference to one medical practitioner in s 57(1) is to prevent medical examinations by a panel of doctors (see for example Re Bessell and Telstra Corporation Limited (1994) 35 ALD 660). It would not be appropriate to limit the number of doctors to whom a claimant could be referred under s 57(1) to one, because it is common in compensation matters for employees to claim compensation for two or more injuries which need to be assessed by medical practitioners having different areas of expertise. The interpretation contended for by the applicant would be impracticable.
7. Next, the applicant referred to extracts from two psychiatric reports contained in the s 37 documents, namely the report of Dr Atchison of 19 February 2008 and of Dr Synnott of 10 June 2008 in support of an argument that the applicant will suffer harm or be prejudiced if he attends the proposed examination. I consider that those extracts do not indicate that that will be the case. In any event, I am told that the focus of the examination will be to ascertain what direction or supervision the applicant requires in activities of daily living, and this might not involve any detailed investigation of the history that gave rise to the condition of post-traumatic stress disorder from which the applicant suffers.
8. There is greater force in the applicant’s further argument that he has already been required to be examined by two other psychiatrists nominated by the respondent, and it is inappropriate to involve yet another psychiatrist who has never previously seen him. This may result in the calling of an additional witness at the hearing of this matter, and will potentially put the parties to greater expense. This is also potentially inconsistent with the obligation of this tribunal under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to provide a mechanism for review that is economical and quick, and finds some support in McCutcheon v Grimmond (1986) 40 SASR 404. In that case Cox J exercised a power in the Supreme Court Rules to limit the number of expert witnesses who could be called in the case then before him. He said that the interests of the court and the public generally, as well as the parties, have an interest in the matter because the number of witnesses called in a case have a direct bearing upon the time the case takes to try and the costs that the unsuccessful party will eventually have to bear. The decision of the South Australian Workers’ Compensation Tribunal in Zielinski v WorkCover Corporation/EML SA (DP World Adelaide Pty Ltd) [2007] SAWCT 49 also provides some support for this argument. However, the applicant confined his argument to whether he had a reasonable excuse for not keeping the forthcoming appointment, and it is inappropriate to express a concluded view at this stage on that matter for the reasons referred to previously. If at some future time the applicant again wishes to contend that he had a reasonable excuse for failing to attend the medical examination, or to base his objection on some broader consideration of relevant provisions of the AAT Act, the tribunal might need to reconsider the issues raised, and will do so in the light of the facts then known, including of course any further evidence that either party may wish to place before the tribunal.
Respondent’s request for particulars
9. I consider it appropriate to give a direction requiring the applicant to provide the particulars requested by the respondent, that is, particulars of any direction or supervision the applicant requires in activities of daily living. This is an issue that will be central to the tribunal’s determination of the application before it. The tribunal will no doubt issue the customary directions in this matter in due course requiring both parties to file witness statements and medical reports, and it would be necessary for the applicant’s witness statement to address the issue in respect of which particulars are requested. However, it would be helpful for such particulars to be provided before any further medical reports are obtained, so that the medical reports can refer to the matters on which the applicant will rely.
Respondent’s request for stay of proceedings
10. I do not consider it appropriate to stay the proceedings at this stage. The applicant will need to consider whether or not to attend the medical appointment with Dr Ewer in the light of the direction I have made and what I have said today regarding the applications before me. If the applicant does not attend the medical examination next week, his entitlement to compensation will not automatically be suspended, because following Australian Postal Corporation v Forgie (2003) 130 FCR 279 (as was held to be the position under s 37 of the SRC Act) the relevant authority will need to make a decision that the requisite pre-conditions to the operation of s 57, that is, a failure to attend a medical examination and no reasonable excuse for that failure, have been met. Any action to suspend the applicant’s entitlement to compensation or for proceedings under the SRC Act to be stayed can only be taken after such a decision has been made.
11. If the respondent decides that there has been a refusal or failure without reasonable excuse, then s 57 will operate, and the rights to compensation will be suspended. A decision to suspend compensation made under s 57 is not reviewable. I agree with the decision to this effect by Senior Member Carstairs in Re Brice and Comcare (2007) 96 ALD 171. If the applicant wishes to challenge that decision, he could only do so by issuing proceedings in the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Circumstances where tribunal can review whether there is a reasonable excuse for non-attendance
12. However, the question of whether or not the applicant had a reasonable excuse for failing to attend the examination may be considered by this tribunal in a different context. If the applicant seeks to prosecute his application for review, notwithstanding the suspension of his entitlement to compensation by the respondent, it will be necessary for this tribunal to decide whether the facts predicated by s 57(2) exist, that is to decide whether the applicant has refused or failed, without reasonable excuse, to undergo the relevant examination. The tribunal would then be required to determine this matter not for the purpose of reviewing the suspension of the right to compensation, but to determine whether it has jurisdiction to proceed with the application before it. It can only do that by deciding whether or not there was a reasonable excuse. Senior Member Beddoe accepted in Re Leonard and Comcare (2000) 64 ALD 197, at [18], that this was the position, and his conclusion is supported by Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459, where Tamberlin J referred to the necessity for the tribunal to determine the existence and limits of its jurisdiction in circumstances where a similar provision, s 37 dealing with refusal to participate in a rehabilitation program, was in issue. Similarly, in Re Funk and Military and Rehabilitation and Compensation Commission [2008] AATA 1044, Deputy President Hack examined the issue of whether there was a reasonable excuse for failing to attend medical examinations in order to determine whether proceedings were stayed by s 57 of the SRC Act.
13. I suggest that the parties review the position in the light of my decision and what I have said today. An appropriate outcome that the parties may consider is for the appointment next week to be cancelled, and for a new appointment to be arranged with Dr Synnott at a time after the particulars have been provided by the applicant. Dr Synnott is one of the two psychiatrists whom the applicant has previously seen, and who is accredited to make assessments pursuant to the Second Edition of the Guide to the Assessment of the degree of Permanent Impairment.
Decision
14. For the reasons given orally at the hearing, the tribunal directs that:
(1)on or before 22 May 2009 the applicant is to file and serve particulars detailing any direction or supervision he obtains or requires in relation to activities of daily living; and
(2)the conciliation conference to be held on 12 June 2009 is vacated.
I certify that the 14 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 1 May 2009
Date of Decision 1 May 2009
Date Decision published 7 May 2009
Counsel for the Applicant Mr O Downs
Solicitor for the Applicant Lieschke and Weatherill
Counsel for the Respondent Mr L Forner
Solicitor for the Respondent Forners Solicitors
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