Tsartas and CSL Ltd
[2012] AATA 485
•27 July 2012
[2012] AATA 485
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4560
Re
Con TSARTAS
APPLICANT
And
CSL LIMITED
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Mr John Handley, Senior Member
Date 27 July 2012 Place Melbourne The Tribunal denies the respondent's request to exercise its discretion pursuant to section 33(2A) of the Administrative Appeals Tribunal Act 1975 to direct the applicant to provide to the respondent with a Medicare list recording the names of his treating medical practitioners.
(sgd) John Handley
Senior Member
PRACTICE AND PROCEDURE – request by respondent to direct applicant to apply for and provide to the respondent a list of treating medical practitioners – whether basis for request speculative – whether information sought is in relation to the proceeding – request denied.
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Health Insurance Act 1973
Safety, Rehabilitation and Compensation Act 1988
Social Security (Administration) Act 1999
Veterans’ Entitlements Act 1986
Re Rayson and Repatriation Commission (2009) 109 ALD 168
Re Woodhouse and Comcare (2007) 98 ALD 462
Re Flanagan and Comcare [2011] AATA 446
REASONS FOR INTERLOCUTORY DECISION
Mr John Handley, Senior Member
On 19 July 2012 in the course of a Telephone Directions Hearing, Mr Clarke, on behalf of the respondent sought a direction pursuant to s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975 (the Act) to require the applicant to obtain a list of the medical practitioners that treated him during the six year period prior to the date of an injury that he suffered while he was employed with the respondent. Mr Clarke requested that he obtain the list from Medicare and provide it to the respondent.
At the conclusion of the directions hearing, I refused the application and gave reasons for doing so. The respondent has requested written reasons.
These reasons have been provided pursuant to the combined effect of s 11 and s 13 of the Administrative Decisions (Judicial Review) Act 1977. Section 43(2A) of the Act compels provision of a statement in writing of the reasons of the Tribunal for its decision. I did not make a decision. I made a direction.
On 10 February 2010, the applicant suffered acoustic and associated trauma bilaterally while employed with the respondent. The documents lodged by the respondent pursuant to s 37 of the Act indicate that the applicant was working as a chemist in its Bioplasma Division in Camp Road, Broadmeadows. The circumstances of the injury are not relevant to these reasons, save that it would appear that an explosion occurred in close proximity to him.
The respondent has accepted liability for acoustic injuries to both ears pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The decision under review is a denial of liability, pursuant to s 19 (2) of the SRC Act, following a return to work by the applicant on a different shift, the consequence being a reduction in his earnings.
In his claim for compensation (T8), the applicant denied having had a similar symptom, injury or illness and denied that he ever had medical treatment for a similar injury or illness.
During routine prehearing procedures within the Tribunal, the respondent issued a summons to a number of doctors requiring the production of their clinical records. The respondent contends that it holds a reasonable suspicion, by reason of a gap in the records between 2008 and 2010 that the applicant had sought treatment for similar injuries or symptoms elsewhere. A request made of the applicant’s solicitors to obtain the list of practitioners from Medicare was declined. The respondent indicated that if it is given the list it will issue summonses to the doctors identified requiring them to produce their clinical records. The respondent could then determine whether, in fact, the applicant did have treatment for a similar symptom, injury or illness.
The respondent also contended that its sick leave records indicated that the applicant had been absent by illness prior to the date of injury. It did not keep copies of medical certificates supplied to verify his absence. It is therefore unable to identify the doctor/s who issued those certificates. However, the respondent contended that the clinical records produced to date did not include copies of medical certificates or entries to coincide with the applicant’s absences from work. This inability to reconcile the applicant’s absences with the available clinical records has formed the basis for a suspicion that the applicant has had treatment from other doctors which he has failed to disclose, the identities of whom can be ascertained by the Medicare records.
I declined to exercise the discretion available under s 33(2A) of the Act which is reproduced in the following terms:
(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; ...
With respect to the respondent, I was and remain satisfied that its application was speculative and did not entitle the discretion within s 33(2A) to be exercised in its favour.
The section gives the Tribunal discretion to require a person who is a party to the proceeding to provide further information in relation to the proceeding. The information sought must be in relation to the proceeding. It is the intention of the respondent to determine whether the applicant has given accurate answers to questions asked within the claim form.
The Health Insurance Act 1973 prohibits release of information other than to a Medicare recipient. An employer or compensation claims agent or agency is not entitled to that information on its application. Access to that information can be obtained, subject to the Tribunals discretion, by the applicant being directed to obtain it and then to provide it, in this case, to the respondent's solicitors.
The respondent relied on a decision of Deputy President Forgie, in Re Rayson and Repatriation Commission (2009) 109 ALD 168. In that decision a direction was made to have the applicant obtain a list of his medical practitioners from Medicare.
The applicant was a veteran who sought to have the condition of depression accepted as war-caused within the meaning of the Veterans’ Entitlements Act 1986. There were reports before the Tribunal confirming the diagnosis. However, the clinical onset of that condition was critical to a finding of whether the applicant satisfied the relevant Statement of Principles. The medical material lodged indicated that there was a gap in the medical records between 1965 and 1998 (at [91]). Although there was nothing from the medical reports lodged to indicate that the applicant had consulted any other medical practitioners, there was a history taken by one of the doctors that the veteran had poor concentration and memory. Deputy President Forgie found that it was conceivable that the applicant had forgotten the names of practitioners that he may have consulted during that period of time.
It seems to me that the direction made by the Deputy President, was in the circumstances of that application appropriate. It was not regarded as being a fishing expedition nor was it thought to be speculative. It was decided, and for reasons that I also agree, that speculation would prohibit a finding that information sought to be obtained would be in connection with a hearing of a proceeding before the Tribunal (s 33(2A) of the Act).
In Re Flanagan and Comcare [2011] AATA 446, a similar, and ultimately successful application, was made by the respondent to direct the applicant to obtain certain documentation from Centrelink. (The Social Security (Administration) Act 1999 has a similar prohibition on the release of information as contained within the Health Insurance Act).
The decisions in Re Rayson and Re Flannigan indicate that the discretion available to the Tribunal pursuant to s 33(2A) of the Act, should be exercised cautiously and upon a proper basis.
The intention of the respondent in this application is to investigate and determine whether the applicant did have a similar symptom, injury or illness, before the date of the claimed injuries and if so, whether it was treated.
To achieve its objectives, the respondent submits that the Tribunal should direct the applicant to a) apply to Medicare for a list of his practitioners and b) provide it to the respondent. (The respondent acknowledged it would then issue summonses and serve them on the doctors identified).
A direction under s 33(2A) must concern the procedure to be followed at or in connection with the hearing. If that is established, the Tribunal may, in the exercise of its discretion, direct a party to provide information in relation to the proceeding.
A summons, to have a person produce documents, being the ultimate objective of the respondent by the direction sought, must be for the purpose of the hearing of a proceeding (s 40(1A) of the Act).
The application is, with respect, speculative. The provision of a list of doctors from Medicare and providing it to the respondent is not in relation to or for the purpose of a proceeding, nor is it in connection with the hearing.
If the direction sought by the respondent is issued (and the list is provided by Medicare), it will then cause the respondent to issue summonses and inspect records of doctors it contends are not presently known. Additionally, it will allow the respondent to determine whether there was any prior symptom, injury or illness.
Those events, as foreshadowed, point to speculation which is neither a proper nor an appropriate basis to exercise the discretion. The respondent contended that the applicant will be given first opportunity to inspect records (by the Tribunals existing return of summons practice), and therefore, the opportunity to object to release of the records to the respondent. This does not, in my view, cure the speculative nature of the application now being made. The right of the applicant to object to release of records, when received by the Tribunal, will only occur after the records have been produced. If not clear from the foregoing, I am not satisfied that the discretion should be issued on the basis contended by the respondent which would have the ultimate objective of permitting it to issue summons to produce those records.
This application is not unlike the circumstances before the Tribunal in Re Woodhouse and Comcare (2007) 98 ALD 462. In that application Deputy President Hack declined to exercise the discretion available to him under s 33(2A)(a) of the Act. In his reasons, he said that the respondent was intending to engage in a fishing expedition and it was seeking to have the Tribunal provide it with the net (at [15]).
An individual’s medical history is an intimate and personal record (Re Woodhouse at [12]). Therefore, there must be a fetter, or at least some caution when permitting an intrusion into those records (Re Woodhouse at [12]). If there was some evidence that the applicant had attended doctors, the identity of which are not presently known, in connection with the claimed injuries or for treatment of them, I might have been persuaded to exercise the discretion in favour of the respondent. However, this application is founded entirely on the basis that the employer has sick leave records which indicate that the applicant was absent from work because of illness. The employer did not retain medical certificates that it assumes would have been provided by the applicant and which would identify the doctors who issued them, possibly doctors who have not already been served with a summons.
There is no evidence of the applicant attending doctors in connection with the claimed injuries. To become aware of the identities of those doctors and to ultimately inspect their records, reinforces the views expressed earlier that the application is speculative, it is not in connection with the hearing or in relation to or for the purpose of the proceeding and it is fishing.
For reasons given above, I am not satisfied that the discretion available under s 33(2A) of the Act should be exercised in favour of the respondent. In the circumstances, I am not prepared to issue the direction sought.
I certify that the preceding 28 (twenty‑eight) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member ............................[sgd]............................................
Associate
Dated 27 July 2012
Date of directions hearing 16 July 2012 Counsel for the Applicant Mr M. Carey Solicitors for the Applicant Slater & Gordon Lawyers Advocate for the Respondent Mr D. Clarke Solicitors for the Respondent Clarke Legal