Twaddell and Comcare

[2001] AATA 759

DECISION AND REASONS FOR DECISION [2001] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/192

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      CATHRYN TWADDELL   
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       M J Sassella            

Date4 September 2001

PlaceCanberra

Decision      The Tribunal decides that the proceedings in this matter are not to be suspended as the Applicant is not in breach of s 57(2) of the Safety, Rehabilitation and Compensation Act 1988.            
  ..............................................
  Senior Member
CATCHWORDS
Application for suspension of Tribunal proceedings – medical examination - non-medical third party presence at a medical assessment – obstruction of medical examination - reasonable excuse for obstruction of medical examination
Safety, Rehabilitation and Compensation Act 1988, s 57
Chowdhary v Bayne [1999] FCA 41
McKinnon v Commonwealth of Australia [1998] FCA 1095
McKinnon v Commonwealth of Australia [1998] FCA 1456
Re Leonard and Comcare [2000] AATA 94
Re Leonard and Comcare [2000] AATA 780
Re Bruce and Comcare [2000] AATA 1007
Ryan v Regent Enterprises (1991) 3 WAR 552

REASONS FOR DECISION

M J Sassella, Senior Member                  

Request under consideration

1. The Respondent's representative wrote to the Tribunal on 9 August 2001 seeking a directions hearing with a view to having further Tribunal proceedings in the matter suspended.
   Factual background

2. The Applicant has had an application for review by the Tribunal on foot for some time.  The Respondent referred the Applicant to Dr J Donsworth, a psychiatrist, for an assessment earlier in the proceedings.  However, Dr Donsworth will be overseas when the matter is due to be heard by the Tribunal.  The Respondent therefore arranged for the Applicant to be examined by Dr D Alcorn, a psychiatrist, on 7 August 2001.  On 30 May 2001 the Respondent's solicitor wrote to the Applicant's solicitor (Exhibit 1) to notify the Applicant of the appointment with Dr Alcorn.  The letter said, amongst other things, that the date, time and place of the appointment was 7 August 2001, at 8.30 am at Health Services Australia, Woden.

3. On 13 July 2001 Dr G Rosendahl, a general practitioner, wrote to the Applicant's solicitor (Exhibit 2) stating, amongst other things, that:

• The Applicant can develop an acute state of anxiety and panic in the context of an assessment performed by a third party.  He had attended such an assessment himself and she was reduced to quivering incoherence.

• Ms Twaddell has been subjected to a number of psychiatric assessments where, in her view, the words were either not recorded or were recorded wrongly and misstated.  The misstatements have sometimes been used to her disadvantage.

• Although Dr Alcorn claims that there is a matter of medical confidentiality in the concept of his psychiatric assessment, Dr Rosendahl disputed this.  In his view Dr Alcorn was not establishing a doctor/patient relationship.  He was writing a report for a third party.

• In the case of the previous psychiatric assessment by Dr Donsworth, it had been agreed that Ms Twaddell could attend with an observer.  However the observer was asked an early stage in the assessment to leave the room.  There is now a matter of dispute as to what was said by Ms Twaddell and also by Dr Donsworth

• The interview proposed is effectively of the same nature as a police interrogation and Dr Rosendahl considered that Ms Twaddell had the same rights as if she were being interrogated by the police.

• Dr Rosendahl concluded by stating that Mrs Twaddell had the right to have an observer of her choice to be present when she saw Dr Alcorn.

1. On 16 July 2001 the Applicant's solicitor wrote to Dr Alcorn (Exhibit 3) about some instructions provided by Dr Alcorn.  Amongst other things he wrote as follows, "Ms Twaddell is very concerned with your instruction about the proposed consultation, in particular, your request that for one part of consultation she meet with you without her companion.  Ms Twaddell has experienced previous psychiatric assessments where she has been required to be unaccompanied during the consultation.  She has found those occasions extremely stressful and feels she is unable to repeat this situation."  The letter requested that Ms Twaddell be accompanied during all stages of the proposed consultation.  A copy of this letter was forwarded to the solicitors for the Respondent (Exhibit 4).

2. On 19 July 2001 the solicitor for the Respondent wrote to the solicitor for the Applicant (Exhibit 5).  He said that he had spoken to Dr Alcorn about the request by Ms Twaddell that somebody accompany her to the examination.  It was reported that Dr Alcorn was prepared to accept the presence of Dr Rosendahl at the examination provided that Dr Rosendahl considered that he had to be present as a matter of medical necessity.  However, if an observer was to be there simply to corroborate the Applicant's account of what occurred during the consultation, the writer did not consider this appropriate.

3. On 1 August 2001 the Respondent issued a notice to the Applicant under s 57 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") (Exhibit 6). This notice required the Applicant to undergo an examination Dr Alcorn, Comcare's selected specialist. The notice suggested that if the Applicant refused or failed, without reasonable excuse, to undergo an examination, or in any way to obstruct an examination, her rights to compensation under the Act and to institute or continue any proceedings under the Act in relation to her compensation claim, may be suspended until the examination takes place. The notice included the following two paragraphs:

   "Should a medical practitioner certify that is medically necessary that you be accompanied to the consultation, that certifying medical practitioner, or another medical practitioner, will be permitted to attend the consultation with you for the certified medical reasons.  However, he or she must not attempt to participate in the consultation by giving history on your behalf, or interfering with Dr Alcorn's assessment.
   "Should any person other than the above mentioned medical practitioner accompany you to the Health Services Australia building, that other person will not be permitted to enter the consultation room or participate in any way in the consultation.  Should that person wish to remain in the Health Services Australia building while the examination is in progress, he or she must wait away from the consultation room.  Should that person attempt to enter the consultation room, Comcare will, if Comcare considers it appropriate in the circumstances, determine this to be an attempt to obstruct the examination, and will exercise its discretion to suspend your rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation."

1. On 2 August 2001 the solicitor for Comcare wrote to the solicitor for the Applicant (Exhibit 7).  He referred to a conversation occurring on 30 July 2001 regarding the Applicant's request to have a "support person" accompany her to her consultation with Dr Alcorn.  He said that he had spoken to Dr Alcorn about Ms Twaddell's request.  Dr Alcorn had advised that if Ms Twaddell has certification that it is medically necessary that she be accompanied, he had no objection to the certifying medical practitioner or another medical practitioner accompanying her for medical reasons.  However, should Ms Twaddell bring someone other than a medical practitioner with her on the day of the consultation for support, that person will be required to wait away from the consultation room while the examination is in progress.  Comcare would view any attempt by that person to enter the consultation room or participate in the consultation as an attempt to obstruct the examination.

2. On 3 August 2001 the Applicant's solicitor wrote to the Respondent's solicitor (Exhibit 8).  Amongst other things, he wrote, "It is our client's position that she wishes a supporter of her choosing, either a family member or friend, to attend with her in the consultation room.  Both our client and their friend or supporter is willing to undertake that the supporter will not speak or in any way communicate with either Dr Alcorn or with our client during the course of the examination and will make no attempt to interfere with examination process in any way.... we do not understand how our client's position can be considered as refusing or failing to attend the examination or in any way to obstruct the examination."

3. On 7 August 2001 the Applicant's solicitor wrote to the Respondent's solicitor stating that Ms Twaddell had attended the consultation room of Dr Alcorn at 8:30 am that morning as instructed (Exhibit 9).  Dr Alcorn, however, refused to allow Ms Twaddell to be accompanied into the consultation by her companion despite assurances from Ms Twaddell that her companion would remain silent and not interfere in any way during the visit.  The letter went on to point out that the client's treating doctor had expressly instructed that Ms Twaddell should be accompanied during consultations because she suffers from acute anxiety and panic attacks.  The solicitor wrote that, in his view, his client had fully co-operated with the request for her to see Dr Alcorn.  He suggested that the Respondent make arrangements for Ms Twaddell to see another psychiatrist who is prepared to allow her to be accompanied during a consultation.
   Hearing and appearances

4. The Tribunal convened a directions hearing in Canberra on 20 August 2001.  Mr Ric Lucas from Colquhoun Murphy Solicitors represented the Applicant.  Ms L Gabriel of counsel represented the Respondent.  The Tribunal had before it the exhibits described above.
   Legislation

5. The relevant statutory provision is s 57 of the Act:

   "Section 57 Power to require medical examination
   57. (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.
   (3) The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
   (4) The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:
     (a) the means of transport available to the employee for the journey;
     (b) the route or routes by which the employee could have travelled; and
     (c) the accommodation available to the employee.
   (5) Where an employee's right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
   (6) An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by notice in writing."

Respondent's Argument

1. As the Respondent requested the directions hearing, Ms Gabriel presented the argument in favour of a suspension of the application by Ms Twaddell before the Tribunal.  She made the following points:

2. Section 57(2) of the Act is self-executing and requires no formal decision by a delegate. The very act whereby an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination results in automatic suspension of the employee's compensation rights under the Act and suspends the continuance of any proceedings under the Act.

1. The Tribunal has jurisdiction as discussed in the Federal Court's decision in Chowdhary v Bayne [1999] FCA 41. The Tribunal notes that this decision is authority for the proposition that the reasonableness of the Applicant's actions, as a precondition to the applicability of s 57(2) of the Act, can be inquired into by the Tribunal provided that there is another reviewable decision before the Tribunal in respect of which the Tribunal clearly has jurisdiction. That is clearly the case here because the primary proceeding is in respect of just such a reviewable decision. The issue thus becomes one of jurisdictional fact.

1. Dr Rosendahl has acted inappropriately in the letter that is Tribunal Exhibit 2.  Ms Gabriel's particular criticisms were that Dr Rosendahl ignored Dr Alcorn's offer that the Applicant could be accompanied by a medical practitioner; that it is not for Dr Rosendahl to judge whether a psychiatrist had misconstrued the Applicant's words; that Dr Rosendahl was wrong in saying that Dr Alcorn could not advance an argument based on medical confidentiality; that Dr Alcorn had a right to set the examination scene as he saw fit; that a medical examination is not tantamount to a police interrogation; and that Dr Rosendahl was trying to take over the process.  As regards Dr Rosendahl's concerns about the Applicant's proneness to anxiety attacks, it was suggested that Dr Alcorn would be able to deal with such an attack if she should have one.

2. The Applicant's conduct was in breach of s 57(2) in that she had been obstructive without offering any valid excuse.

Applicant's Argument

1. Mr Lucas made the following arguments for the Applicant:

2. Dr Rosendahl was justified in offering his opinion as to the medical circumstances of the Applicant.

1. There is no reason why Dr Rosendahl could not make his point about the misconstruction of Ms Twaddell's comments in earlier examinations. 

1. The Applicant's situation under s 57(2) should not hinge on the reasonableness or otherwise of comments by Dr Rosendahl.

1. The letter from Colquhoun Murphy in Exhibit 8 set out the Applicant's position.  It explained the type of support she felt she needed.  The person was to be a friend or family member and to attend the consultation with her but not speak or interfere during the examination process.

1. The letter from Colquhoun Murphy in Exhibit 9 reinforced the Applicant's concern about panic attacks stemming from seeing a psychiatrist alone.  Mr Lucas was unimpressed with Ms Gabriel's suggestion that Dr Alcorn would be fit to assist Ms Twaddell should she experience a panic attack.

1. Dr Alcorn proposed a four-hour examination.  The Applicant would have to pay Dr Rosendahl or another doctor for four hours of his or her time if she asked a doctor to accompany her.  It was reasonable for the Applicant to bring a lay friend.

1. The Applicant conceded that a medical examination is not the same as a police interrogation.

Authorities

1. Each party cited authority to the Tribunal.  Ms Gabriel relied on McKinnon v Commonwealth of Australia [1998] FCA 1095 in which Hill J held that it would be reasonable for a plaintiff in a common law damages action to refuse to undergo a medical examination requested by the respondent if the plaintiff could demonstrate that there was some medical reason why attendance could be deleterious to him or her. In McKinnon v Commonwealth of Australia [1998] FCA 1456 Hill J held, where the plaintiff had refused to attend a doctor nominated by the respondent, that the proceedings should be stayed. This was because the plaintiff was unable to demonstrate how his health would be deleteriously affected by his attending the nominated doctor in Sydney.

2. With due respect to Ms Gabriel, the Tribunal has some difficulty seeing how these cases assist in the instant case.  We are not dealing here with an episode of refusal to attend an appointment.  In this case, too, there appears evidence from Dr Rosendahl as to risks to Ms Twaddell's psychological health from an examination that is arguably more cogent than the evidence advanced by Dr Earp in the second McKinnon case (supra).

3. Ms Gabriel referred to Re Leonard and Comcare [2000] AATA 94. That was also a case in which an applicant before the Tribunal had refused to attend interviews with medical specialists requested by the respondent. There were a number of reasons advanced including a challenge to the validity of the notice served under s 57 of the Act. However, the main features were the applicant's refusal to attend because the respondent had not sent the applicant, in advance, a list of questions she would be asked at the examination. In the event, the Tribunal decided that the applicant was justified in refusing to attend a session with an orthopaedic surgeon as she had already submitted to an examination by another orthopaedic surgeon nominated by the respondent. It was, however, adjudged unreasonable for her to refuse to attend an examination by a psychiatrist. Psychiatric issues were before the Tribunal and the input of a psychiatrist was justified. The proceedings were stayed pending the applicant attending on the nominated psychiatrist.

4. The case resumed (Re Leonard and Comcare [2000] AATA 780) when the applicant attended the psychiatrist with her husband but did not remain for the examination. The psychiatrist ruled that the husband could not accompany the applicant through the examination but the applicant seemed prepared to accept this and did not raise it as an issue. She curtailed the interview because Comcare's solicitors, and not Comcare itself, had arranged the examination. The Tribunal held that this was an unreasonable refusal to undergo an examination under s 57(2) of the Act. Her stated reasons were considered to be specious.

5. Again, the Tribunal found the Leonard (supra) cases of limited utility in the instant case.  In neither case do they deal with an applicant who says she is prepared to be examined only if accompanied by a certain person.  The reasons advanced for refusal to undergo examination were quite different from those advanced by Ms Twaddell.

6. Ms Gabriel alerted the Tribunal to Re Bruce and Comcare [2000] AATA 1007. In this case the Australian Government Solicitor, acting for Comcare, purported to serve a s 57 notice on the applicant. It was held that a s 57 notice must be issued by Comcare and that it cannot be issued by a solicitor for a relevant authority under the Act. The Government Solicitor's letter also did not refer to s 57, in any event. There was, therefore, no room for the operation of s 57(2) of the Act. However, in what was effectively obiter dicta, were such a concept applicable in this Tribunal, the Tribunal held that it would have been reasonable for the applicant to refuse to undergo a psychiatric assessment because of evidence that the applicant could have been at risk of harming himself if forced to undergo such an assessment.

7. While this case might seem to assist the Applicant in the instant case, it too is distinguishable from the instant case. There is a valid notice under s 57 in the present case. The Applicant in the present case has not refused to undergo an examination. The issue here is whether an applicant can insist on being accompanied by a lay support person when attending a medical examination.

8. Mr Lucas cited Ryan v Regent Enterprises (1991) 3 WAR 552, a decision of the full court of the Supreme Court of Western Australia, in support of the Applicant's position. In Ryan's case (supra) the appellant was in receipt of workers' compensation payments when the respondent's insurer asked her to attend a medical examination with a nominated orthopaedic surgeon.  She refused to attend unless an independent medical practitioner of her solicitor's choosing was also present.  She attended the rooms of the surgeon with an independent medical practitioner.  The surgeon declined to examine the appellant as he had not been informed that another medical practitioner would be present.  The appellant had appealed to the Supplementary Workers' Compensation Board.  The appellant had failed at that level of appeal and appealed to the full court.

1. In 1988 the appellant had been examined by the orthopaedic surgeon.  She had certain objections to the way in which that examination had been carried out.  When, in 1990, she was requested to attend a further examination by the same orthopaedic surgeon she decided that she would attend only if accompanied by another person.  That other person was of course a medical practitioner.  The full court at page 565 of the decision has some criticisms to make of the method by which the appellant had arrived at the orthopaedic surgeon's rooms with another medical practitioner whose presence had not been foreshadowed.  However, Malcolm CJ made the following comments at page 565:

   "In my opinion, it is, in general, reasonable for such a person required to submit to a medical examination by a doctor chosen by a third party to request that she be accompanied by a doctor of his or her choice or perhaps a lay person, such as a close friend or a member of the family if he or she so chooses.  A person who agrees to submit to a medical examination subject to such a condition cannot be said to have refused to submit to the examination or to have obstructed it.  There may be reasons, such as reasons of inconvenience, delay, expenditure or otherwise, which would make such a condition unreasonable in any particular case."

1. The full court found unanimously in favour of the appellant.  The Tribunal considers this a useful authority.  It can, of course, be distinguished because the specialist in Ryan (supra) was an orthopaedic surgeon whereas Dr Alcorn is a psychiatrist.  It might be argued that the nature of a psychiatric examination is intrinsically more private than an orthopaedic examination and that the presence of a friend or medical practitioner could impede the examination. 

Findings on material questions of fact with reference to the evidence and other materials in support of the findings

1. The matters for the Tribunal as set out is s 57 of the Act, together with the Tribunal's findings on each, are as follows.

2. The employee must have made a claim for compensation under s 54 of the Act (s 57(1)(b) of the Act). The Applicant has done this in the present case. Had she not done so there would not likely be an application for review lodged with the Tribunal.

3. The relevant authority, here Comcare, may require the employee to undergo an examination by a legally qualified medical practitioner nominated by the relevant authority (s 57(1)).  Comcare has done this in the present case (Exhibit 6).

4. The employee must have refused or failed to undergo the examination, or must have in any way obstructed the examination, without reasonable excuse.  In the present case the Applicant arrived for the examination and was prepared to be examined, but only if she could be accompanied by her friend (Exhibits 8 and 9), and Dr Alcorn refused to conduct the examination in those circumstances.  The two issues outstanding are:

5. Was it an obstruction of the examination for the Applicant to insist on being accompanied?

1. If the answer to issue one is yes, did the Applicant have a reasonable excuse for so obstructing the examination?

1. The Tribunal finds that the Applicant did obstruct the examination by her requirement that a support person accompany her into the examination. She was aware of the attitude of Dr Alcorn as shown in Exhibit 3, and of Comcare's attitude as described in the s 57 notice (Exhibit 6), should she insist on having a support person at the interview. She nevertheless proceeded to see Dr Alcorn with a support person. It was reasonably foreseeable that the examination would not occur if she did this. The behaviour was, therefore, obstructive of the examination. The Tribunal acknowledges that it is diverging from the opinion of the Supreme Court of Western Australia in Ryan (supra) in making this finding.  In that case the Court held that the appellant had not obstructed the examination by reasonably requiring the presence of an observer.  The facts in the instant case are, in the Tribunal's view, different in view of the expressed preferences of Dr Alcorn and Comcare.

2. However, the Tribunal finds that the Applicant had a reasonable excuse for obstructing the examination.  The Tribunal is impressed by the authority in Ryan's case (supra) which provides, in the Tribunal's view, a starting point for consideration in all matters involving the referral of an applicant or plaintiff to a medical practitioner nominated by the respondent.  The Tribunal takes into account the following considerations in reaching this conclusion:

• The context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.  It is not surprising that an applicant undergoing such an examination might desire a person to be present offering moral support.  Indeed, for some applicants the beneficial presence of such a person might facilitate a more thorough examination because the examinee may be more forthcoming.

• Where, as here, there is evidence that a particular applicant has particular reservations about presenting alone for an examination, a factor in Ryan (supra) also, there is a stronger case that it would be reasonable for such an applicant to have a support person.  In the present case there was evidence that the Applicant can be subject to panic or anxiety attacks (Exhibit 2) and that she distrusted medico-legal psychiatrists because she considered that they had misunderstood and misrepresented her in the past.

• Dr Alcorn's uncompromising attitude may, in itself, be unreasonable.  He had suggested in correspondence that the examination might take up to four hours and that it was multi-faceted.  There was no suggestion that a support person might be present for some of the examination but that he would prefer the Applicant to be alone, for example, for certain more sensitive discussion that might be necessary.

• There was no evidence presented that all reputable psychiatrists would adopt Dr Alcorn's uncompromising attitude to the presence of a lay support person.

• In argument Ms Gabriel said that, with the aborting of the examination scheduled for 7 August 2001, it may be necessary to refer the Applicant to a different psychiatrist because Dr Alcorn may not be able to accommodate her for a replacement examination in the near future.  This suggests that the Respondent is prepared to consider referrals to psychiatrists other than Dr Alcorn.  In the Tribunal's view it might be prudent for the Respondent to attempt to locate an appropriate psychiatrist who would be prepared to permit the Applicant to bring with her a lay support person who could be present for a substantial part of the examination.  Should it prove impossible to find such a psychiatrist after reasonable efforts have been made, then a future Tribunal may take a different view of the reasonableness of Ms Twaddell's requirements.

Conclusion

1. The Tribunal has concluded that the Applicant had a reasonable excuse for obstructing the examination that was to be conducted by Dr Alcorn.  This means that, in the Tribunal's view, there are not sufficient conditions in place to justify suspension of the Tribunal application.
   Decision

2. The Tribunal's proceedings in this matter are not to be suspended as the Applicant is not in breach of s 57(2) of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

Signed:         .....................................................................................
  Associate

Date of Hearing  20 August 2001
Date of Decision  
Counsel for the Applicant  Mr R Lucas

Counsel for the Respondent  Ms L Gabriel