Walsh and Comcare (Compensation) - [2022] AATA 158

Walsh and Comcare (Compensation) [2022] AATA 158 (4 February 2022)
Division:GENERAL DIVISION
File Number:2021/0233
Re:Adrian Walsh
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:4 February 2022
Place:Brisbane

An implied undertaking applies to the Respondent in relation to some of the reports of
Dr Journeaux. The Tribunal finds that the Respondent does not require a release from that implied undertaking before it can use those reports for the assessment of the Applicant’s request that it classify the complications/conditions that arose as a direct result of his primary right foot injury in accordance with the International Classification of Diseases and Injuries.
....[SGD]....................................................
Member D Mitchell
CATCHWORDS
PRACTICE AND PROCEDURE – implied undertaking – whether implied undertaking applies in relation to use of documents for claims management purposes – release from implied undertaking required where documents used for collateral or ulterior purposes – no release required as use was not for collateral or ulterior purposes
CASES
Chin and Comcare [2017] AATA 634
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hearne v Street (2008) 235 CLR 125
Home Office v Harman [1983] 1 AC 280
Oliver and Comcare (Compensation) [2018] AATA 1964
Warner and Comcare [2017] AATA 2709

SECONDARY MATERIAL
Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1)

REASONS FOR DECISION
Member D Mitchell
4 February 2022
INTRODUCTION

Mr Adrian Walsh (the Applicant) made a claim to the Respondent for permanent impairment and non-economic loss in relation to his accepted injury of fractured right tibia and fibular (primary right foot injury). The application was resolved by way of a decision of this Tribunal, made on 29 November 2021, with the consent of the parties.
The Respondent subsequently sought a release from the implied undertaking in relation to certain medical reports provided as part of the Tribunal proceedings.
The Applicant objects to the release from the implied undertaking.
Both parties filed submissions and a telephone Interlocutory Hearing was held on
20 December 2021.
BACKGROUND
Aside from the claim made by the Applicant in relation to his primary right foot injury, the Applicant also subsequently requested the Respondent recognise or reclassify, in accordance with the International Classification of Diseases and Injuries, several complications/conditions arising from his primary right foot injury.
On 22 November 2021, the Respondent formally requested that the Tribunal release it from the implied undertaking in respect of all medical reports obtained by the Respondent in the course of the proceedings including, but not limited to, the reports of Dr Journeaux, dated 17 August 2020, 29 March 2021 and 11 October 2021, to assist in the consideration of the complications/conditions arising from the Applicant’s primary right foot injury. The Respondent submitted that those reports provided detailed explanations of the Applicant’s clinical presentation over the past 15 months, particularly, with regards to his symptomology in respect of his primary right foot injury.
The Respondent had earlier written to the Applicant seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walsh and Comcare (Compensation)

Details

AGLC: Walsh and Comcare (Compensation) [2022] AATA 158
Case: [2022] AATA 158
Decision Date: 4 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between an applicant and Comcare concerning the use of medical reports. The applicant had sustained a primary right foot injury and subsequently sought to have several complications arising from this injury recognised or reclassified according to the International Classification of Diseases and Injuries. Comcare requested to be released from an implied undertaking in relation to medical reports obtained during the proceedings, arguing these reports would assist in considering the applicant's request regarding the complications. The applicant objected to this release, asserting that the original purpose of obtaining the reports was solely for assessing his whole person impairment, and that using them for claims management or classification purposes would be a collateral or ulterior use.

The legal issue before the Tribunal was whether Comcare required a release from the implied undertaking to use the medical reports of Dr Journeaux for the purpose of claims management, specifically in relation to the applicant's request for classification of complications arising from his primary right foot injury. The applicant argued that this use was outside the original purpose for which the reports were provided, which was limited to assessing whole person impairment. The Tribunal was required to determine if the proposed use constituted a collateral or ulterior purpose, thereby necessitating a release from the implied undertaking.

The Tribunal applied the principle of implied undertaking, as established in High Court decisions such as *Esso Australia Resources Ltd v Plowman* and *Hearne v Street*. This principle dictates that a party obtaining documents or information for a specific litigation purpose cannot use them for a different purpose without leave of the court. The Tribunal noted that the implied undertaking applies to documents obtained during proceedings. However, it found that the report dated 17 August 2020 was produced prior to the commencement of the Tribunal proceedings and therefore the implied undertaking did not apply to it. For the reports dated 29 March 2021 and 11 October 2021, the Tribunal concluded that using them for the purpose of assessing the applicant's request to classify complications arising from his primary injury was not a collateral or ulterior purpose. Instead, it was considered a legitimate aspect of claims management related to the original purpose for which the reports were obtained.

Consequently, the Tribunal determined that Comcare did not require a release from the implied undertaking to use the reports of Dr Journeaux dated 29 March 2021 and 11 October 2021 for the purpose of assessing the applicant's request for classification of complications. The Tribunal noted that the applicant would be entitled to seek a review if he disagreed with any subsequent decision made by Comcare regarding his classification request.

Orders

Orders of the court

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Background

Background to the litigation

Both parties filed submissions and a telephone Interlocutory Hearing was held on 20 December 2021.BACKGROUND Aside from the claim made by the Applicant in relation to his primary right foot injury, the Applicant also subsequently requested the Respondent recognise or reclassify, in accordance with the International Classification of Diseases and Injuries, several complications/conditions arising from his primary right foot injury. On 22 November 2021, the Respondent formally requested that the Tribunal release it from the implied undertaking in respect of all medical reports obtained by the Respondent in the course of the proceedings including, but not limited to, the reports of Dr Journeaux, dated 17 August 2020, 29 March 2021 and 11 October 2021, to assist in the consideration of the complications/conditions arising from the Applicant’s primary right foot injury. The Respondent submitted that those reports provided detailed explanations of the Applicant’s clinical presentation over the past 15 months, particularly, with regards to his symptomology in respect of his primary right foot injury. The Respondent had earlier written to the Applicant seeking his agreement to the release from implied undertaking in relation to Dr Journeaux’s report dated 11 October 2021. The Applicant objected to this release. In his submissions received on 18 November 2021, the Applicant stated that he had not requested that the Respondent assess any additional complications/conditions secondary to his primary right foot injury, but rather to classify the complications that exist as a direct result of his primary right foot injury, that are currently only referenced globally by the descriptor “fractured right tibia/fibula”, so that they are classified according to the International Classification of Diseases and Injuries. The Applicant stated that his primary right foot injury was “the immediate cause of a plethora of complications and impairments that are the core source of [his] compensable condition encompassed within the descriptor Fractured right tibia/fibula.” The Applicant further provided that his preference was for any subsequent classification by the Respondent be made in consultation with his local orthopaedic surgeon, as well as the orthopaedic surgeon who performed the triple arthrodesis on his right foot. On 23 November 2021, the Applicant provided the following further submissions in support of his objection to the Respondent’s request for release from implied undertaking:Even though the Respondent has put forward their case that they ‘remain of the view that the abovementioned medical reports would assist the Respondent in ongoing claims management concerning the primary right foot injury’, I have several concerns regarding this request:1.The remit of Dr Journeaux’s clinical examinations and medical reports were specifically in relation to my Permanent Impairment application with the Respondent. There was no request for Dr Journeaux to classify my complications/conditions as per ICD-9, ICD-10 or ICD-11. In that regard, the focal point of the examinations and their conclusions are not related to my classification request, and furthermore there are no designations contained therein with reference to the World Health Organisation’s International Classification of Diseases (ICD-9, 10, or 11).2.The Respondent has requested that ‘all medical reports obtained by the Respondent in the course of the matter, including but not limited to the reports of Dr Journeaux…’ are released from the implied undertaking. The Respondent’s original request from 20 October 2021 was for just the supplementary report of Dr Journeaux dated 11 October 2021 to be released. Now the Respondent requests ‘all medical reports’ be released. The exact rationale and reasons for the change in the request are not elucidated beyond generic comments in assisting in ‘ongoing claims management’. My presumption is that the Respondent would like to use these reports in perpetuity with regards to any ‘additional claims’ and ‘ongoing claims management’, which is extending my request to the Respondent beyond the implied assistance in classifying the complications/conditions of my primary injury as per ICD-9, 10 or 11.3.My presumption is that the final supplementary report of Dr Journeaux dated 11 October 2021 has superseded the clinical examination and conclusions of the first two reports dated 17 August 2020 and 29 March 2021. If that is the case, what would be the utility of those reports, especially given that the supplementary report of 29 March 2021 had no clinical examination associated with it and the fact that the information contained in the prior reports was superseded?4.In addition to point 3, the whole person impairment (WPI) assessment changed from 12%WPI to 27%WPI, then to 30% WPI between the first and last medical reports of Dr Journeaux. What would be the exact use of these superseded reports? I can only conclude that, if used in the context of my ‘ongoing claims management’ and ‘additional claims’, they would only serve to confuse any future analysis.5.In addition to, and as an example of point 4, when I objected to the Respondent’s Reconsiderations Team in a series of comprehensive emails regarding the medical report of the 17 August 2020 and its conclusions that I was 12% WPI (in direct contravention of s 3. Application of this guide, of the Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 {Approved Guide}) the Respondent ‘assisted’ my ongoing claims management by dismissing my concerns in the space of a single A4 sheet of paper and resorted to incorrect conclusions based on a very superficial analysis, without any attempt to address my concerns with the seriousness they deserved. In terms of the utility of the 17 August 2020 medical report, it served a specific purpose for the Respondent at that time. I do not want the medical reports of Dr Journeaux (17 August 2020, 29 March 2021, 11 October 2021) to serve a purpose in perpetuity for the Respondent that I am not currently privy to and for which confusion and misinterpretation is a real possibility.6.If the Respondent is to use any of Dr Journeaux’s medical reports in the context of the ICD-9, 10 or 11 classification of my right limb complications and conditions, my presumption is that further consultation with Dr Journeaux would be required, as the medical reports do not specifically categorise any of the clinically-observed sequelae as per ICD-9, ICD-10 or ICD-11. I would prefer any consultations regarding my conditions and complications to be with Dr Bryceson or Dr Grujic, for reasons previously stated. I do not think it unreasonable to be empowered with making these sorts of decisions in regard to my disabilities.7.Most importantly, however, is the fact that my application to the Respondent for Permanent Impairment, which was signed and dated on 17 January 2020, almost two years ago, has during that time morphed into an extremely mentally fatiguing and stressful series of events, culminating with the ongoing claim before the Administrative Appeals Tribunal. For someone like myself who suffers disabilities that cause extreme physical pain and daily difficulties with mobility that are hard to articulate to able-bodied people, it is a simple fact that I do not desire any extra stress regarding my medical conditions. Unfortunately, at least the last 14 months of my life have been antithetical to this desire. In that regard, I would like this period of time put behind me, without any reminders or triggers to the stress I have experienced. Unfortunately, Dr Journeaux’s medical reports are a key part of this negative experience, and they are a constant reminder to me of the exhausting effort, both mental and physical, that I have had to endure to fight for what I believe in. The only consolation to this endeavour, is that I have at least been partially successful in proving my impairments far exceeded that initial 12% WPI rating, and now I desire more than anything to move on and to not have any reminders of this exhausting process. This is why I respectfully request that the Tribunal deny the Respondent’s request to release the medical reports of Dr Journeaux.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal notes that should the Applicant disagree with the decision that is made by the Respondent in relation to his request to classify/recognise the conditions/complications arising from his primary right foot injury, it would be open to him to seek a review of that decision.CONCLUSION An implied undertaking does not apply in relation to the report of Dr Journeaux, dated 17 August 2020, as that report was produced prior to the commencement of the Tribunal proceedings in this matter. An implied undertaking applies to the Respondent in relation to the reports of Dr Journeaux dated 29 March 2021 and 11 October 2021. The Respondent does not require a release from that implied undertaking before it can use the reports of Dr Journeaux in the assessment of the Applicant’s request that it classify the complications/conditions that exist as a direct result of his primary right foot injury in accordance with the International Classification of Diseases and Injuries. Such a claims management purpose is not collateral or ulterior to the purpose for which the reports had been sought and provided during the proceedings.

Ratio Decidendi

Legal Principle Established

The Applicant drew the Tribunal’s attention to the High Court’s decision in Hearne v Street (2008) 235 CLR 125 and the principle that “the party obtaining the disclosure cannot, without the leave of Court, use it for any purpose other than for which it is given.” The Applicant submitted that the sole purpose of obtaining Dr Journeaux’s reports was to assess his whole person impairment with reference to the Guide to the Assessment of the Degree of Permanent Impairment.[1] The Applicant contended that “ongoing claims management” or the assessing of his request for classification of complications arising from his primary right foot injury is “categorically” not the same purpose of the request to use the report to elucidate his whole person impairment.[1] Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1).CONSIDERATION There is a large volume of cases dealing with implied undertakings. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36, Brennan J, in relation to implied undertaking said that:The underlying principle ….. is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a "collateral or ulterior purpose". That phrase is not used in a pejorative sense, as Lord Diplock said in Home Office v Harman, but it is used "merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, (the solicitor for a party) was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people's documents." [Citations omitted] The implied undertaking principle was further outlined by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125 at [96] as follows:Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. [Citations omitted] There is a considerable number of Tribunal decisions that also consider release from an implied undertaking. In this matter, both parties referred the Tribunal to the decision in Oliver and Comcare (Compensation) [2018] AATA 1964 (Oliver). The Respondent sought to rely on that decision in regard to its contention that the use of Dr Journeaux’s reports for ongoing claims management concerning the primary right foot injury is not an ulterior or collateral purpose to which the reports had been sought and provided during the proceedings, such that consideration of those reports, would not be in breach of the undertaking. As such, the Respondent’s contended that a release from the implied undertaking that exists in relation to the reports of Dr Journeaux is not required for the purposes of ongoing claims management in relation to the Applicant’s primary right foot injury.