Trickett v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Trickett v State of Queensland (Queensland Health) [2024] QIRC 174
PARTIES:	Trickett, Michael Anthony (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2023/176
PROCEEDING:	Public Sector Appeal – Directive decision
DELIVERED ON:	22 July 2024
MEMBER:	McLennan IC
HEARD AT:	On the papers
ORDERS:	That the decision to direct the Appellant to attend an independent medical examination, subject of the Appeal, contained in the letter of Frank Tracey dated 6 September 2023, is confirmed, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – appeal against a direction to attend an independent medical examination (IME) – – where appellant directed to attend an IME – where appellant sought a review of the direction – where the appellant then agreed to attend an IME at a mention of the matter – where the decision appealed against is confirmed
LEGISLATION AND INSTRUMENTS:	Public Sector Act 2022 (Qld) s 103, s 104, s 105, s 106, s 107, s 108, s 109 Public Sector Commission Guideline, Managing employee health, safety and wellbeing – independent medical examinations cl 10

Reasons for Decision

Mr Michael Trickett is employed by the State of Queensland (the Respondent), Queensland Health (the Department), as a Business Analyst at the Queensland Children's Hospital.
Mr Trickett appeals a decision of the Department dated 6 September 2023, that he received the following day. The correspondence from Mr Frank Tracey, Chief Executive, Children's Health Queensland HHS stated that Mr Trickett had been absent from the workplace since 19 May 2021 and that in accordance with ss 103 and 104 of the PS Act, he was directed to attend an IME.
Appeal Details
Mr Trickett filed the appeal on 8 September 2023.
No jurisdictional objections have been raised by the Respondent. I will proceed to hear the appeal.
Appeal Grounds
Mr Trickett's reasons for appeal, as contained in the Appeal Notice, are that:
Attending an IME under the PSA section 104 & 103.
(MAT) Medical Assessment Tribunal have given me 19% perm impairment earlier in the year. I have Drs report, signed off perm impairment documents via all of my treating team. Evidence. WorkCover document. Lawyers independent IME's. None tabled or presented to the HSCE for review. Just a brief on what my employer wants the HSCe to see. It's not one sided under Chapter 3, part 10 of the PSA I can appel (sic) dired (sic) to QIRC.
I would ratle (sic) all documentaion (sic) be tabled & present in front of a Panels decision. Not a single IME. Documents Provided to me also State is I have been too MAT & had an open & now closed case via WorkCover I should not be submitted to further IME's under section 5 Commission chief Exec guidelines. I also commenced working for CHQ in 2007, Not 2014.
I'm appealing the letter sent to me tody (sic) 7/9/23 from Frank Tracy on the basis I would like a fair & independent review from a panel with all Evidence of perm Impairment.
Relevant legislation
The decision appealed against is a direction that Mr Trickett attend an independent medical examination (IME). Sections 103-109 of the Public Sector Act 2022 (Qld) (PS Act) provide:
103    Application of division
This division applies to a public sector employee if—
(a)the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing the employee's duties satisfactorily; and
(b)the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.
104     Chief executive may require medical examination
The employee's chief executive may—
(a)appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
(b)      require the employee to submit to the medical examination.
105     Employee not to be given sick leave if requirement not complied with
The employee must not be given sick leave for any period during which the employee fails to comply with a requirement under section 104(b).
106     Medical examination report
(1)The report on the medical examination must include the examining doctor's opinion as to whether the employee has a mental or physical illness or disability that may adversely affect the employee's performance.
(2)If the doctor considers the employee has an illness or disability mentioned in subsection (1), the report must also include the doctor's opinion as to the following—
(a)the likely direct or indirect effect of the illness or disability on the employee's performance;
(b)      an estimate of how long the illness or disability or its effects are likely to last;
(c)whether or not disclosing the information in the report to the employee might be prejudicial to the employee's mental or physical health or wellbeing.
(3)If the doctor's opinion is that the disclosure will not be prejudicial to the employee's mental or physical health or wellbeing, the chief executive must give the employee a copy of the report as soon as practicable after receiving the report.
(4)If the doctor's opinion is that the disclosure might be prejudicial to the employee's mental or physical health or wellbeing, the chief executive must not disclose the contents of the report to the employee.
(5)However, if asked by the employee in writing, the chief executive must make the disclosure to another doctor nominated by the employee in the request.
107     Action following report
(1)If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may—
(a)      transfer or redeploy the employee; or
(b)      if it is not reasonably practicable to transfer or redeploy the employee—
(i)for a public service employee—retire the employee from the public service; or
(ii)for a public sector employee mentioned in section 12(1)(b)—retire the employee from the employee's employment.
(2)      Subsection (1) does not limit the action that may be taken relating to the employee.
108     Record of requirement and report
(1)      The chief executive must keep a record of—
(a)      the requirement to submit to a medical examination; and
(b)      the report on the medical examination.
(2)If the chief executive considers it necessary to protect the employee's interests, the chief executive may keep the record separate from other records about the employee.
109     Directive about mental or physical incapacity
(1)The commissioner may make a directive providing for matters relevant to the way in which this division is to be applied in relation to public sector employees.
(2)The chief executive of a public sector entity exercising a power or performing a function under this division must comply with the directive.
Submissions
The parties filed written submissions, in accordance with directions issued on 12 September 2023.
On 10 April 2024, Mr Trickett emailed the Industrial Registry as follows:
Please be advised, that as of Friday 5^th April 2024, my Total and Permanent Disability Insurance (TPD) with QSuper has been approved.
This further supports my claim to be medically retired due to an injury cause by my workplace Children's Health Queensland.
…
Hopefully this update aides in your decision making for me to be medically retired.
On 4 July 2024, Mr Trickett once again emailed the Industrial Registry asking for the Commission's "… review of the matter to either be medically retired or seek a return to work in line with my capacity certificate from my medical professionals and the last IME Dr Chalk …"
Given those developments, I called a Mention on 11 July 2024.
First Mention on 11 July 2024
At the first Mention, I asked Mr Trickett if the outcome he sought by filing the public sector appeal was to be medically retired. He confirmed "Yeah, that's right".
I then explained to Mr Trickett the scope of any orders I may make and the pathway to his desired outcome. An extract from the transcript of that Mention, is as follows:
Commissioner:         … So the only decision that I can make in a public sector appeal of this type is whether or not Mr Trickett has to attend an IME. So, Mr Trickett, I can't order that you be medically retired, and I wouldn't order that you attend on a particular doctor for –
Appellant:                 Yep.
Commissioner:          - any IME that I might order. And I just wanted –
Appellant:                 Yep.
Commissioner:          - to point out that if medical retirement if the outcome that you're seeking, then I guess the pathway to get there is to first go to an IME because –
Appellant:                 Yep.
Commissioner: - with reference to the Public Sector Act 2022, you may have had a look at it in the course of, you know, filing the material for your appeal, but sections 103 to 109 just sets out the – I guess, the process by which the Chief Executive can require medical examination, and then, importantly, section 107, Action Following the Report, you know, says:
If, after considering the report of the medical examination, the Chief Executive is reasonably satisfied the employee's absence –
is – just paraphrasing, is caused by mental illness or disability, the Chief Executive may do a few – you know, transfer, redeploy or, if that's not reasonably practicable, the public service employee – retire the employee from the public service, which is where –
Appellant:No. I'm perfectly fine with that process. The qualm that I had with my employer is they refused to use any evidence that was external to the WorkCover process to support my claim. That was my qualm with them – that they went straight to – everything that you've got in writing that they received they refused to acknowledge – was external to the WorkCover process. That was my qualm with the process. And if that's the decision to attend an IME, I'm more than happy to do that, but it was, like, that they hadn't considered all the evidence in front of them.
Commissioner: Okay. So my reading of the Public Sector Act is that the pathway for medical retirement is to first attend an IME. Now, is it still the case, Mr Trickett that – I notice in your submissions dated 3^rd of October 2023, part 3, Outcome – I note that you say that if you attend an IME, you want to attend upon Dr Trevor Lotz, is that still correct?
Appellant:                 That was just the advice of my legal team at the time. That, I guess, doesn't stand. I'm open to whoever.
Commissioner:          Okay. So you're open to attending anyone for an IME?
Appellant:                  That's fine. Yeah.
Commissioner:          All right. Mr Sparrow, do you want to make any comment at this stage? I think if Mr Trickett said that he's open to attending an IME, then that's - everyone's in violent agreement, right?
Mr Sparrow:              Yes, Commissioner.
I then summarised the status of the matter resolved at Mention at that point, as follows:
Commissioner: All right. Well, Mr Trickett, given Dr Lotz was, you know, the medical expert that your original submission in October 2023 was, how about this. How about if Mr Sparrow undertakes to check with the respondent whether – or check, firstly, whether Dr Lotz is qualified to do that job – I assume he is, but best to check – and whether the respondent has any issue. I assume if Dr Lotz is qualified to do an IME there would be no issue. Okay. But in the event that there is a problem there, then Mr Sparrow will provide Mr Trickett with three, I guess, medical practitioners either to do an IME, and Mr Trickett, you can let Mr Sparrow know which of those you choose. Yeah?
Appellant: Yeah. Look, again, I'm happy with that…
Mr Sparrow undertook to "do the check on Dr Lotz and then, if that's not possible, provide the three names to Mr Trickett" by Tuesday 16 July 2024.
I then explained the next steps in the resolution of Mr Trickett's complaint, as follows:
Commissioner:          … Mr Sparrow, if you can copy in the Industrial Registry, attention my chambers please, when you provide that advice to Mr Trickett by email by Tuesday of next week, and then when that's received, what I'll do is I'll order that the stay be lifted, okay, and then, Mr Trickett, you would attend the IME, okay.
Appellant:                 Yep.
Mr Sparrow:             Thank you, Commissioner.
Appellant:                 That's fine. So is there any – can I just understand why the additional evidence outside of WorkCover's not being considered?
I then again explained to Mr Trickett the process outlined in ss 103 to 109 of the PS Act. Specifically, that his attendance at the IME directed and the employer's subsequent consideration of the report produced, is the pathway to his stated desired outcome of medical retirement. Mr Trickett again confirmed to me that that he didn't disagree with any of that, stating "… Again, I've been to several IMEs. I'm not questioning why I need to go to another one. I'm happy to proceed with that. I just don't know why that's been pushed aside and ignored from my employer – that they're actually not following their own advice." I replied that:
Commissioner: Okay. Well, I guess what I'm concerned with...is…not looking in the rearview mirror at this stage. I just want to, you know, take a practical view and work with the parties to establish what the cleanest and fastest pathway is to resolve Mr Trickett's complaint.
The agreement reached between the parties at the first Mention was encapsulated by my closing comments, in these terms:
Commissioner:          … I'm not hearing any disagreement from the parties, so that is what we will do…So by Tuesday next week, Mr Sparrow will make the inquiries about Dr Lotz. If he's not a suitable person or not qualified to do the IME, three names will be provided to Mr Trickett by email. Mr Trickett, if it's not Dr Lotz, pick one of those three names and arrangements will be made for you to attend at the IME. And then when I get –
Appellant:                 Okay.
Commissioner:         - confirmation that a name has been chosen, then I'll order that the stay is lifted and that resolves the matter. Okay. All right. Thanks very much, everyone. That deals with it.
Mr Sparrow emailed Mr Trickett (copy to the Industrial Registry) on 16 July 2024, as agreed at the first Mention. Mr Sparrow's email correspondence explained that the Respondent did not wish to use Dr Lotz for Mr Trickett's IME. That is because s 10.1 of the PSC Guideline – Managing employee health, safety and wellbeing – independent medical examinations provides that a doctor should be chosen who is: independent, has expertise in the relevant area of the suspected mental illness, and "is not currently treating or has previously treated the employee – that is to eliminate a real or perceived conflict of interest." Mr Sparrow noted that a human resource officer had attempted to call Mr Trickett on the telephone to establish whether there was any prior treating relationship with Dr Lotz but had been unable to reach him. Mr Sparrow then proceeded to set out three IME doctors with availability in September 2024 to conduct an IME with Mr Trickett.
Shortly thereafter, Mr Trickett replied to Mr Sparrow's email. In it, he reminded Mr Sparrow that does not "answer the phone to anyone" as a result of his PTSD condition and that "As per the ruling from the commission Dr Lotz should be the IME I attend as agreed by all parties at the hearing. There is no reason to suggest further IME dr's, Dr Lotz was agreed by all if qualified. He is, no relation and has no knowledge of my case. Dr Lotz it is or we will go back to the commissioner."
Second Mention on 18 July 2024
Upon reading the email exchange between the parties of 16 July 2024, I determined to hold a second Mention.
At the second Mention, I reminded Mr Trickett that he had repeatedly agreed to attend an IME and confirmed to me that he was "open to whoever" to conduct the IME. I also read from the first transcript the precise words of the resolution of the matter reached at the conclusion of the first Mention. I note that Mr Sparrow had acted in accordance with the agreement reached at the first Mention.
In addition, I explained to Mr Trickett that the decisions I can make on public sector appeals under s 562C(1) of the IR Act are to either: confirm the decision appealed against; or set the decision aside and substitute another decision; or return the matter to the decision maker. My decision would not name the particular doctor that Mr Trickett would attend for the IME. That means that my decision would be simply to uphold the decision appealed against - and order that Mr Trickett attend an IME, as directed by Mr Tracey.
On the basis of the oral reasons provided in the two Mentions, I ordered at the second Mention that decision subject of the appeal is confirmed.
Fair and reasonable
Notwithstanding Mr Trickett's clear and repeated agreement to attend an IME at the First Mention on 11 July 2024, and that he did not have a particular view as to which doctor he would be referred to attend upon, Mr Trickett has again emailed the Industrial Registry to inquire " … what happens if I do not agree to the order and further IME's … ".
In circumstances where Mr Trickett appears to be considering withdrawing his earlier agreement to attend an IME, it is prudent to also determine that Mr Tracey's 6 September 2023 decision was fair and reasonable because:
(a)At the time of Mr Tracey's decision, Mr Trickett had been absent from the workplace since 19 May 2021 – a period of two years and three months. In accordance with s 103(a) of the PS Act, the employee was absent from duty; and
(b)As set out in Mr Tracey's decision letter dated 6 September 2023, Mr Tracey "reasonably suspects" that the employee's absence is "caused by a physical illness or disability."
On the application of the material facts to the relevant legislation, I can be satisfied that Division 5 of the PS Act, [1] applies to Mr Trickett.
[1] Mental or Physical Incapacity.
Therefore, it was fair and reasonable for the authority to appoint a doctor to examine Mr Trickett and require Mr Trickett to submit to the medical examination.
Conclusion
Mr Trickett has the right to appeal my decision. I have prepared these brief written reasons to enable Mr Trickett to consider his grounds of appeal, should he wish to do so.
Orders
I make the following order:
That the decision to direct the Appellant to attend an independent medical examination, subject of the Appeal, contained in the letter of Frank Tracey dated 6 September 2023, is confirmed, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

[2024] QIRC 174

22 July 2024