Tindall and Telstra Corporation Limited (Compensation)
[2022] AATA 660
•31 March 2022
Tindall and Telstra Corporation Limited (Compensation) [2022] AATA 660 (31 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/7892
2021/0783
Re:Christopher TINDALL
APPLICANT
AndTelstra Corporation Limited
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:31 March 2022
Place:Sydney
I find that the notice issued under s 57(1) of the SRC Act which requires the Applicant to attend the medical appointment with Associate Professor Miniter is not in breach of the SRC Act, and as such the Applicant is required to attend the medical appointment under s 57 of the SRC Act.
................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – workers compensation – s 57 notice issued requiring Applicant to attend medical appointment – whether s 57 limits attendance to one medical practitioner – whether issuing of s 57 notice in breach of s 57(1) – notice issued validly – applicant required to attend medical appointment.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, 16, 57
CASES
Bessel and Telstra Corporation Limited (1994) 35 ALD 660
PKVC and Minister for Home Affairs [2018] AATA 4045
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
31 March 2022
BACKGROUND
This matter has a lengthy history before the Tribunal which can be summarise briefly as follows.
The Applicant made a claim for workers compensation on 29 September 2008, with an injury date of 25 September 2008. On 30 September 2008, the Respondent accepted liability for ‘acute sprain right knee’. On 29 December 2009, an extension of liability determination was made in respect of ‘temporary aggravation of acute sprain right knee and aggravation of degenerative changes in left knee’. It was determined that the Respondent was liable to pay the Applicant compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).
In a medical report dated 25 June 2020 by Dr. Darren Paterson, a request was made to arthroscope the Applicant’s left knee in order to perform a bilateral radio-frequency ablation.
On 30 July 2020, the Applicant attended an independent medical assessment with an orthopaedic surgeon, Dr Anil Nair, and a report produced, dated 13 August 2020.
Following this, a supplementary report was requested to clarify and provide additional information regarding the left knee condition. The supplementary report was provided on 11 September 2020.
Following these reports, the delegate of the Respondent found that the current left-knee condition “is of a pre-existing degenerative nature and there is no evidence to indicate this is a work-related injury.”
The delegate found that an arthroscopy surgery of the left knee was not reasonable to obtain in the circumstances.
By determination dated 15 October 2020, the Respondent denied liability under s 16 of the SRC Act to pay compensation for ‘left knee arthroscopy’ in respect of the Applicant’s accepted condition ‘aggravation of degenerative changes in left knee’. On 17 October 2020, the Applicant requested a review of this determination. On 10 November 2020, the delegate of the Respondent revoked the determination dated 29 December 2009, on the basis that the initial liability determination was incorrect and the Applicant did not have any entitlement under s 14 of the SRC for ‘aggravation of degenerative changes in left knee’. The Applicant applied to the Tribunal for review of this decision on 11 February 2021.
By reviewable decision dated 11 November 2020, the determination dated 15 October 2020 was affirmed. The delegate found that, following the revocation of the determination dated 10 November 2020 which found that the Respondent was not liable for any left knee injury, it followed that the Respondent had no liability for any treatment to the Applicant’s left knee.
On 29 November 2020, the Applicant submitted an application for review of that decision to the Tribunal.
In the course of the proceedings, on 18 August 2021 the Respondent advised the Tribunal it had organised for the Applicant to be medically examined by an orthopaedic surgeon, Dr. David Maxwell, on 11 November 2021.
On 18 October 2021, the Respondent advised the Tribunal that the appointment with Dr. Maxwell had been cancelled, and had rescheduled it so the Applicant would be examined by Associate Professor Neil McGill, rheumatologist, on 2 December 2021. The appointment with Dr. Maxwell had been disrupted due to COVID-19.
The Applicant attended the appointment with Associate Professor McGill.
On 21 February 2022, the Respondent advised the Tribunal that it had been organised for the Applicant to be medically examined by Associate Professor Paul Miniter, orthopaedic surgeon, on 11 April 2022, under s 57 notice of the SRC Act.
A conference by telephone was held on 22 February 2022, during which the Applicant noted their objection to the further medical examination.
On 11 March 2022, the Respondent emailed the Applicant enclosing further details of the appointment and the s 57 notice. The examination dated was brought forward to 6 April 2022 due to new availability with Associate Professor Miniter.
On 16 March 2022, the Respondent emailed the Tribunal to request that the matter be listed for a directions hearing as the Applicant has advised them on 14 March 2022 of their intention not to attend the medical appointment.
THE MATTER WAS HEARD ON 23 MARCH 2022. THE LAW
Section 57 of the SRC Act states as follows:
Power to require medical examination
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) states as follows:
Directions hearing
(1A) The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced--by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b)where the hearing of the proceeding has commenced--by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d)limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)require witnesses to give evidence at the same time; or
(f)limit the time for giving evidence or making oral submissions; or
(g)limit the length of written submissions.
DISCUSSION
The Applicant’s primary objection to attending the appointment which had been arranged for him with Associate Professor Miniter on 6 April 2022 is that he has been required to a significant number of medical appointments previously. In particular, five orthopaedic appointments had been attended and those reports filed with the Tribunal. The reports date from 2009. The most recent appointment was with Associate Professor McGill in December 2021.
The Applicant also submitted that the power under s 57(1) to require the Applicant to attend a medical examination was limited to examination by one legally qualified medical practitioner, and that the Respondent was in contravention of s 57.
The Respondent drew the Tribunal’s attention to the fact that some of the previous appointments were not undertaken with regard to these proceedings, but rather that they were required as part of the Applicant’s ongoing entitlement to compensation. However, they acknowledged the inconvenience to the Applicant of having to attend numerous medical appointments. The Respondent explained that there was an original appointment with Dr Maxwells made during the COVID-19 pandemic when medical appointments were difficult to arrange, and had subsequently had to change to an appointment with Associate Professor McGill who was prepared to see the Applicant in person.
The Respondent also noted that the Applicant had filed a further supplementary medical report from an orthopaedic surgeon in early 2022, and the Respondent wanted a further report from an orthopaedic surgeon now that the COVID-19 restrictions had largely ended to address the report filed by the Applicant.t. The Respondent also noted that this report may be useful in leading to a resolution of the proceedings before the Tribunal. The Respondent said that any possible settlement was not relevant and of course there is no certainty that there would be a settlement to the matter. However, I consider this to be of some relevance given the obligations of the Tribunal in relation to the progression of matters before it.
There is relevant authority within the Tribunal in relation to the question of attendance at medical appointments pursuant to s 57(1) of the Act. In particular, the issue was considered by Deputy President Breen in the case of Bessel and Telstra Corporation Limited (1994) 35 ALD 660 where it was decided that there was no limit on the number of appointments which an applicant could be required to attend under s 57, but rather a limit on the number of medical practitioners who could be present for the examination. This case has been followed regularly in proceedings before the Tribunal. I note that an applicant may have more than one medical condition which requires medical examination and that there is potential conflict between s57(1) and s 57(6) if it was determined that an applicant could only be required to attend one medical appointment.
There is also an issue of procedural fairness which requires that the Respondent is able to present its case appropriately. This, of course, does not mean that an applicant can be required to go to excessive and unnecessary appointments, but I do not find that this to be the case in the current matter.
I note the Applicant said that a further report would be of no assistance to the Tribunal given the material already before it, however; that is a matter that could only be determined at hearing as the content of the report is currently unknown. I note also the Respondent’s comments that there was no particular urgency for this matter to proceed as the Applicant is currently receiving compensation for injury to his right knee and the current concern is with his left knee.
Accordingly, I find that it is reasonable for the Respondent to require the Applicant to attend the medical examination with Associate Professor Miniter, and that the notice issued under s 57 of the SRC Act is not in breach of the Act as submitted by the Applicant.
I note that the Respondent noted that, if the Tribunal found against the Respondent in relation to s 57(1) notice, the Tribunal exercise its powers under s 33 of the AAT Act to require the Applicant to attend the medical examination with Associate Professor Minister, as this would assist in the resolution of the matter and in the Tribunal coming to the correct or preferable decision. In this regard, my attention was drawn to a decision of Deputy President Rayment in PKVC and Minister for Home Affairs [2018] AATA 4045, in which it was found that the exercise of s 33 should be exercised “in order to permit the respondent to call evidence before the Tribunal in opposition to the applicant’s case.”. Given my decision outlined above regarding the validity of the s 57 notice, it is however unnecessary for the Tribunal to make such a direction.
DECISION
I find that the notice issued under s 57(1) of the SRC Act which requires the Applicant to attend the medical appointment with Associate Professor Miniter is not in breach of the SRC Act, and as such the Applicant is required to attend the medical appointment under s 57 of the SRC Act.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
............................[sgd]............................................
Associate
Dated: 31 March 2022
Date(s) of hearing: 23 March 2022 Solicitors for the Applicant: Mr R. Dababneh, Turner Freeman Lawyers Solicitors for the Respondent: Ms S. Leembruggen, Sparke Helmore
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