Steele and Pacific National Pty Limited

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

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,…