ZFCC and Comcare (Compensation)
[2018] AATA 1358
•22 May 2018
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.
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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 14Cases
Comcare v Maganga 101 ALD 68Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
REASONS FOR DECISION
Deputy President Gary Humphries
22 May 2018
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.
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.
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.
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
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)
Deputy President Forgie went on to consider the objection of the applicant in that case to the production of health records held by various doctors. She observed:
24. The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
25. What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.
26. Each of the six summonses to which Mr Panagiotou has objected required the person to whom it was addressed to produce the same type of documents. I have set out their description at [7] above. Mr Panagiotou has not suggested that he has not been treated by any of the medical practitioners or at the medical practice to which the summonses were directed. On their face, the documents could reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision. Therefore, I have decided that Mr Panagiotou’s objection to the issue of the summonses is without foundation. The persons to whom the six summonses are directed must comply with them… (Footnotes ommitted)
Although the Tribunal there was considering whether it was appropriate to issue summonses for the medical records, very similar considerations apply to the question of whether a party should be granted access to summonsed records. In each case, the probative threshold for obtaining or granting access to the documents is that set out by Bennett J in Comcare v Maganga 101 ALD 68 at [37]-[38]:
…the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings…
The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation or if they might be used for a legitimate forensic purpose in cross-examination…[References omitted]
The right to privacy, including the privacy of intimate medical records, is well-established in Australian law. There are, however, circumstances where an individual may explicitly or implicitly surrender elements of that privacy in a legal context. One such context is where an individual seeks to secure a pension or allowance from Centrelink, eligibility for which is determined by establishing that the individual suffers a statutorily-determined level of illness or disability. The disability support pension is an example of this. Another example is where an individual seeks compensation for a work-related injury or illness. In each case, the seeking of the entitlement presupposes that the seeker is willing to disclose so much of his or her medical history as would satisfy a decision maker that they have suffered the requisite degree of injury, disease or impairment as the law prescribes to establish that entitlement. In practice, this generally entails the individual making his or her full medical record available to the decision maker and, on appeal by either party, to the court or tribunal reviewing a decision regarding that entitlement.
Medical records are generally produced through the issuing of a summons under s 40A on an applicant’s medical practitioner. When the records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.
An objection may assert that the summonsed records include documents covered by legal professional privilege, or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.
The first of these relates to the difficulty of interpreting those records. Notes composed by a doctor in his or her surgery during or after a consultation are sometimes not readily decipherable by a layperson, even when typed. Such notes often use abbreviations or codes to refer to symptoms, medications or medical procedures which may only be intelligible to another doctor or a suitably trained person. As such a lay reader may fail to appreciate that the record is discussing a particular symptom, drug or treatment.
Even when the content of a particular record is fully comprehensible, the relevance of that content to the issue before the Tribunal may not be readily apparent. A member of the Tribunal lacking medical qualifications, as most of us do, is ill-equipped to determine the possible relevance of particular medical records to a particular claimed condition. What might appear quite irrelevant to such a member might be differently appraised by a doctor. The complexity of the human body means that evidence of an injury or disease may manifest in parts of the body which appear to be functionally unconnected to the seat of that injury or disease.
Some examples serve to illustrate this point. We know that skin rashes can sometimes indicate connective tissue diseases in parts of the body other than where the rashes occur. A history of suffering an illness caused by ticks can be indicative of a later susceptibility to arthritis. Fallen arches can be an indication of risk of a collapsed lung or heart valve problems.[2] So, in the latter example, the exclusion, say, of a podiatrist’s report from inspection may deprive a party and the Tribunal of evidence relevant to an issue concerning cardiovascular disease.
[2] The Tribunal is indebted to Dr Rob Gregor for these examples.
Even where details of an applicant’s medical history are clearly unrelated to the condition presently before the Tribunal, there are circumstances where those details may nonetheless throw light on an applicant’s credit worthiness in the proceedings. This issue was touched upon by Bennett J in Maganga at [26]-[29].
The passing of intimate medical records to strangers in the course of proceedings like these can, of course, be distressing to an applicant. The Tribunal and the party to whom access is granted should be mindful of that distress, and take reasonable steps to minimise it. Ethical and legal constraints affect a respondent’s use of this material, and these constraints must be diligently applied in a respondent’s dealings with the records. Alternatively, the parties and the Tribunal may agree that the probative value of certain records is sufficiently low to warrant their exclusion from the proceedings. But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly-relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant.
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.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 22 May 2018
Date(s) of hearing: 16 May 2018 Date final submissions received: 16 May 2018 Advocate for the Applicant: Husband of ZFCC Solicitors for the Respondent: Australian Government Solicitor
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