ZFCC and Comcare (Compensation)

Case [2018] AATA 1358

ZFCC and Comcare (Compensation) [2018] AATA 1358 (22 May 2018)

Division:GENERAL DIVISION

File Number(s):2017/6525      

Re:ZFCC  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:22 May 2018

Place:Canberra

The Tribunal disallows the Applicant’s objection to the Respondent’s inspecting the documents produced on the summonses on the Gungahlin Medical and Surgical Centre.

........................................................................

Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – objection by the Applicant to the Respondent’s inspection of material produced under summons – relevance of the material produced under summons to the issues raised by the reviewable decision – objection disallowed.

Legislation
Administrative Appeals Tribunal Act 1975 ss 40A, 40B
Safety, Rehabilitation and Compensation Act 1988 s 14

Cases
Comcare v Maganga 101 ALD 68

Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

REASONS FOR DECISION

Deputy President Gary Humphries

22 May 2018

  1. The Applicant, ZFCC, has sought merits review by the Tribunal of a decision of Comcare declining a claim for liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The claim relates to a condition of adhesive capsulitis of shoulder (right) which ZFCC says arose out of a functional capacity assessment conducted in respect of another, accepted employment-related condition at the behest of Comcare, the Respondent, on 14 July 2017.

  2. Some brief consideration of Comcare’s reviewable decision rejecting ZFCC’s claim is necessary. In that decision, Comcare’s delegate considered a range of medical evidence before him and then indicated that he could not be satisfied that she sustained an injury or an aggravation as a result of the functional assessment. It appears that this decision implicitly canvasses three possibilities: that any injury arising from the functional assessment does not satisfy the test of a compensable injury under the SRC Act, that ZFCC sustained an injury by a cause other than the functional assessment, or that she has not sustained an injury at all.

  3. In the course of these proceedings Comcare served a summons on the medical practice where ZFCC has received treatment, the Gungahlin Medical and Surgical Centre. Documents were produced pursuant to that summons. ZFCC has now objected to Comcare being granted access to the entirety of the documents produced, arguing that Some of the information contained relates to personal information not relevant to my right shoulder injury.[1] Instead, she has asked the Tribunal to redact 74 pages of the produced records. The records proposed for redaction relate primarily, but not exclusively, to pap smears and to treatment for breast cancer.

    [1] In this decision, italicised text is generally used to indicate direct quotations.

  4. After hearing the parties, the Tribunal has decided to disallow ZFCC’s objection to Comcare’s access to the documents, for the reasons given below.

    RELEVANT LEGISLATION 

  5. The power to issue a summons is conferred by s 40A of the Administrative Appeals Tribunal Act 1975, which provides:

    Power to summon person to give evidence or produce documents

    (1)For the purposes of a proceeding before the Tribunal, the President,…

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AGLC
ZFCC and Comcare (Compensation) [2018] AATA 1358
Case
[2018] AATA 1358
Decision Date

CaseChat Overview and Summary

This matter concerned an objection by ZFCC to Comcare's inspection of medical records produced under summons. The dispute arose in the context of a reviewable decision before the Administrative Appeals Tribunal (AAT), presided over by Deputy President Gary Humphries.

The primary legal issue before the Tribunal was whether ZFCC's objection to Comcare inspecting certain medical records, which ZFCC sought to have redacted, should be allowed. This required the Tribunal to consider the relevance of the summoned material to the issues in dispute and the principles governing access to documents produced under summons.

The Tribunal applied the principles outlined in *Panagiotou and TNT Australia Pty Ltd*, which liken summonses issued by the AAT to court subpoenas. These principles establish a process where documents are produced, objections are considered, and then a decision is made regarding preliminary use, including inspection by parties. The Tribunal reasoned that it could not be safely concluded that the records ZFCC proposed to redact were completely irrelevant to her claim. For instance, information regarding a mastectomy could potentially be relevant to the incidence of pain or trauma in a nearby shoulder. The Tribunal considered that a full picture of ZFCC's medical history might identify other factors potentially contributing to her condition, and that while summonses should not be used as a "fishing exercise," identifying alternative causes of injury could be an incidental benefit. The Tribunal concluded that denying Comcare access to these records might hinder satisfactory conclusions regarding the cause of ZFCC's condition, which was central to the proceedings.

Accordingly, the Tribunal disallowed ZFCC's objection to Comcare inspecting the documents produced through the summonses on the Gungahlin Medical and Surgical Centre.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The power to issue a summons is conferred by s 40A of the Administrative Appeals Tribunal Act 1975, which provides:Power to summon person to give evidence or produce documents (1)For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons: (a)appear before the Tribunal to give evidence; (b)produce any document or other thing specified in the summons. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division. (2)The President or an authorised member may refuse a request to summon a person. (3)A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless: (a)the summons or another summons requires the person to appear before the Tribunal; or (b)the Tribunal directs the person to attend the hearing. The Tribunal may, but is not compelled, to provide access to the parties to inspect documents produced under summons. Its power to do so is contained in s 40B:Inspection of documents produced under summons (1)Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding: (a)the President; (b)an authorised member; (c)an authorised officer. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division. (2)However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if: (a)the officer considers that it is not appropriate for the officer to make the decision; or (b)a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal. (3)If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons: (a)a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and (b)the Tribunal may reconsider the decision on such an application or its own initiative; and (c)the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document. RELEVANT PRINCIPLES The purpose and process with respect to the issuing of a summons and subsequent access to documents produced pursuant thereto was summarised by Deputy President Forgie in Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [19]-[20]:19. A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence. Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them. 20. Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or tribunal proceeding. Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind and Hill v National Employers’ Mutual General Association Ltd:The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs. (Footnotes ommitted)

Decision

Reasons for decision

Making the complete records available to Comcare’s medical witnesses may well assist in identifying the functional assessment as the cause of her claimed shoulder condition. But, conversely, denying Comcare access to those records may lead to doubt that satisfactory conclusions as to the cause of her condition can be arrived at, and this issue is one centrally concerned with the proceedings at hand. Whatever the outcome, the objective of merits review of this decision is best served by having ZFCC’s medical records available to Comcare for inspection.CONCLUSION The Tribunal will disallow ZFCC’s objection to Comcare inspecting the documents produced through the summonses on the Gungahlin Medical and Surgical Centre.

Ratio Decidendi

Legal Principle Established

It is also, of course, possible for an affected party to lead medical evidence regarding the potential relevance of medical records sought for inspection. Although this rarely occurs in practice, the Tribunal might in these circumstances be satisfied that it was safe to exclude that evidence. Even then, a clear dividing line between the relevant and the irrelevant must be evident, particularly if it is the Tribunal member himself or herself who must examine the records in light of that evidence to determine what should be excluded from inspection and what not.CONSIDERATION Application of these principles in the case of ZFCC’s records suggests that the safer course of action is that Comcare have access to the entirety of her medical records as summonsed. It cannot be safely concluded that the records which ZFCC proposes should be redacted are completely irrelevant to her claim. For example, the identified records include information about a mastectomy. The Tribunal cannot exclude the possibility that surgical intervention in her upper torso may have had some effect on the incidence of pain or trauma in a nearby shoulder. As already indicated it is possible, based on the terms of the reviewable decision, that Comcare will submit that ZFCC sustained an injury by a cause other than the functional assessment. A full picture of her medical history may identify other factors potentially at play. Of course, records should not be summonsed primarily as a “fishing exercise” to obtain evidence to bolster a respondent’s case, but the identification of alternative causes of injury may be an incidental by-product of seeking to gain a picture of an applicant’s state of health. Making the complete records available to Comcare’s medical witnesses may well assist in identifying the functional assessment as the cause of her claimed shoulder condition. But, conversely, denying Comcare access to those records may lead to doubt that satisfactory conclusions as to the cause of her condition can be arrived at, and this issue is one centrally concerned with the proceedings at hand. Whatever the outcome, the objective of merits review of this decision is best served by having ZFCC’s medical records available to Comcare for inspection.CONCLUSION The Tribunal will disallow ZFCC’s objection to Comcare inspecting the documents produced through the summonses on the Gungahlin Medical and Surgical Centre.