Leonard and Comcare [2000] AATA 94 (14 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/122

GENERAL ADMINISTRATIVE DIVISION ) Q1999/386

Re ROSLYN MARGARET LEONARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 14 February 2000

Place Brisbane

Decision Proceedings are suspended until an examination takes place. The applications will be removed from the list of applications awaiting hearing by the Tribunal until such time as the applicant attends for examination by Dr Reddan or until the requirement to attend the said examination is withdrawn.

Decision No ....................................

Senior Member

CATCHWORDS

COMPENSATION : Attendance at required medical examination Meaning of "without reasonable excuse" -- Whether reasonable excuse - Agreed questions - Legally qualified medical practitioner

Safety, Rehabilitation and Compensation Act 1988 ss 54, 57(1), 57(2)

Fazlic v Milinginbi Community Inc (1982) 38 ALR 424

Taikato v The Queen (1996) 186 CLR 454

Liversidge v Anderson [1942] AC 206

Qantas Airways Ltd v Cornwall [1998] 865 FCA (24 July 1998)

McKinnon v Commonwealth [1998] 1456 FCA (19 November 1998)

Prescott v Bulldog Tools Ltd [1981] 3 All ER 869

McKinnon v Commonwealth [1999] FCA 717 (27 May 1999)

Trajkovski v Telstra (1998) 153 ALR 248

Re Pepper and Comcare (1995) (unreported)

Re De Marco and Comcare (1996) 43 ALD 654

REASONS FOR DECISION

14 February 2000 Mr K L Beddoe (Senior Member)

1. The applicant has two applications pending in this Tribunal. The respondent asserts that section 57 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") operates to suspend these proceedings because the applicant has refused or failed without reasonable excuse to undergo two medical examinations as required by the respondent. The applicant contests the view of the respondent about the effect of section 57 and in particular asserts that the applicant has reasonable excuse for not attending the two medical appointments.

2. Section 57(1) relevantly provides that Comcare may require the employee being a person who has made a claim for compensation under section 54, to undergo an examination by a legally qualified medical practitioner nominated by Comcare.

3. Where an employee refuses or fails without reasonable excuse, to undergo such an examination the employee's rights to compensation under the Act, and to institute or continue any proceedings under the Act in relation to compensation are suspended until the medical examination takes place (section 57(2)).

4. At the hearing of this matter Mr Howe of counsel instructed by Sparke Helmore appeared for the respondent and the applicant's husband represented her in these proceedings. Various documents were put before the Tribunal and marked as exhibits. Oral submissions were made on behalf of both parties. No oral evidence was taken by the Tribunal.

5. I make the following findings of fact:

(a) By notice purporting to be issued pursuant to section 57 of the Act and dated 2 September 1999 a delegate of the respondent required the applicant to attend for medical examination by a legally qualified medical practitioner at the date and time specified being Wednesday 24 November 1999 at 11.15am. The medical practitioner was a Dr Dickinson practising at the Wesley Medical Centre Auchenflower. I was told Dr Dickinson is an orthopaedic specialist.

(b) By further notice pursuant to section 57 of the Act a delegate of the respondent required the applicant to attend a medical examination by a legally qualified medical practitioner on Wednesday 19 January 2000 at 11.00am. The medical practitioner was Dr Reddan whom I am told is a consulting psychiatrist and practises at Wickham Terrace.

(c) Those notices pursuant to section 57 were not served on the applicant but were served on the applicant's husband apparently on the understanding that both the applicant and her husband had requested that all correspondence be directed to him. Nothing turns on the fact of the service having been accepted on the applicant's behalf.

(d) Exhibit 1 is a copy of a letter dated 4 November 1999 sent to the respondent on the applicant's behalf which includes the applicant's reasons as to why the examination by Dr Dickinson "cannot occur" and also some comments in relation to the proposed examination by Dr Reddan. I set these reasons out in full as follows:

"1. Comcare is not the employer within the meaning of the Act relating to section 57 and therefore, Comcare has no legal authority under the Act to issue the section 57 notice. The notice is therefore null and void.

2. Flowing from point 1, Comcare has had no legal authority for each past such examination either and effectively forced Mrs Leonard to undergo a number of invasive examinations, which separately re-ignited the work injury without any legal authority.

3. You agreed, following the concerns with prior medical examinations that Mrs Leonard would be provided with the proposed questions at least 28 days in advance for her consideration as to their relevance and bias. That procedure was implemented for Dr Blue but the agreement has not been complied with by Comcare in relation to Dr Dickinson.

4. Dr Dickinson was engaged on a previous occasion to examine Mrs Leonard. Mrs Leonard required Comcare to provide the proposed questions in advance for agreement as to relevance and bias and agreement on the extent of radiological data as prerequisites to attendance for examination. Comcare, despite adequate notice, failed to provide the required prerequisites and failed to advise Dr Dickinson of the need to cancel the appointment. Comcare did not cancel Dr Dickinson and incurred a cancellation fee. Dr Dickinson would have read the papers provided by Comcare and been inconvenienced by Comcare's failure to cancel the appointment. Clearly, therefore, there is a reasonable perception of an adverse bias by Dr Dickinson towards Mrs Leonard.

The proposed examination by the psychiatrist in January 2000.

5. Comcare is not the employer within the meaning of the Act relating to section 57 and therefore, Comcare has no legal authority under the Act to issue the section 57 notice. The notice is therefore null and void.

6. Flowing from point 5, Comcare has had no legal authority for each past such examination either and effectively forced Mrs Leonard to undergo a number of invasive examinations that separately re-ignited the work injury without any legal authority.

7. You agreed, following the concerns with prior medical examinations, that Mrs Leonard would be provided with the proposed questions at least 28 days in advance for her consideration as to their relevance and bias. That procedure was implemented for Dr Blue but has not yet been complied with by Comcare in relation to the proposed examination."

6. The letter of 4 November 1999 did not say that the applicant would not attend the medical examinations although that has now come to be the fact. She did not attend the medical examination by Dr Dickinson and she did not attend the medical examination by Dr Reddan as arranged by the respondent.

7. In relation to Dr Dickinson's examination the applicant's representative reiterated the arguments as set out in the letter of 4 November 1999 with particular emphasis on the fact that a previous medical examination had been arranged in relation to Dr Dickinson that questions to be asked by Dr Dickinson had been somehow agreed between the applicant and the respondent but that the applicant had not attended the medical examination. It was not made clear to me as to why the applicant did not attend that medical examination but it was inferred the reason for non-attendance was not because of a deliberate decision by the applicant not to attend. It was asserted for the applicant that this situation resulted in a perception of bias on the part of Dr Dickinson in that the applicant having failed to attend a previous examination Dr Dickinson would have some prejudice against the applicant because of that earlier failure to attend. I was told that in fact Dr Dickinson was paid for the non-attendance by the applicant.

8. The further issue on behalf of the applicant in relation to the appointment before Dr Dickinson is the alleged failure of the respondent to agree a set of questions to be put to the doctor as had apparently been done at an earlier medical examination arranged by the respondent and conducted by Dr Blue. It seems to be the fact that Dr Blue's examination was conducted within the confines of a set of agreed questions. There is however nothing in the legislation that requires the respondent to agree a set of questions with the applicant although in many cases that may well be a desirable process. Such a set of questions should not inhibit or restrict an examination by a medical specialist for a medico-legal report and there is no obligation on either party to agree such a set of questions when obtaining a medico-legal report for the purpose of proceedings in this Tribunal.

9. In relation to Dr Reddan the applicant takes exception to a notice that issued from Dr Reddan's premises being on her letterhead but apparently sent to the applicant by the respondent. The applicant has apparently taken exception to this notice because it states the basis on which Dr Reddan was to conduct the medical examination and in particular draws attention to the fact that the examination may last for three hours. Considerable emphasis was placed upon this particular aspect of the notice. With respect to the applicant's contentions Dr Reddan's notice which is headed "Instruction to Person Undergoing Examination" is nothing more than a courtesy advice to allow a person such as the applicant to understand the likely length of the consultation and to remind that person to do such things as to bring reading glasses, contact lenses or hearing aids and a list of current medications. The notice also provides that Dr Reddan's staff do not provide child minding and also refers to the fact of the cancellation fee. I have considered this notice (which is included in Exhibit 6) carefully but I am satisfied that it is an unexceptionable notice issued quite regularly by medical practitioners and is issued as a matter of courtesy and not as a matter of coercion as seems to be the perception of the applicant in these proceedings.

10. The notice from Dr Reddan was sent to the applicant on 13 January 2000 and on the 14 January 2000 a medical certificate was provided by Dr Karen Flegg, General Practitioner, in relation to the applicant which reads as follows:

"Re: Roslyn Leonard.

I understand that Roslyn is due to have a three hour psychiatric examination by Dr Reddan. It is my opinion that she would not cope with such a lengthy examination emotionally."

11. Dr Flegg was not called to give evidence and therefore I can only deal with the certificate on its face. It seems though that Dr Flegg has confused the notice that came from Dr Reddan, if she ever saw it, because she seems to be of the view that the applicant was required to undergo a three hour psychiatric examination. Dr Reddan's notice does not say that but refers to attendance at her office for three hours or more to allow for an interview and other investigations or other testing which may be necessary to be completed.

12. As to the assertion that Dr Reddan would not allow the applicant to take a break for her lunch there is simply no basis for that assertion. Nor is there any basis for an assertion the examination to be conducted by Dr Reddan would in fact be three hours of constant examination. I think I can accept that it would be reasonable for the applicant to perceive that a psychiatric examination is likely to have a number of different facets to it. I was told that the applicant regularly attends a clinical psychologist for the purpose of treatment and I have no reason to be satisfied that the examination to be conducted by Dr Reddan would be other than a reasonable examination. In that regard I note that the applicant took no steps to contact Dr Reddan or make any further enquiries as to the exact nature of the examination and that is in my view the problem with Dr Flegg's medical certificate. The inference in Dr Flegg's certificate has no basis in fact so far as I am aware.

13. I am satisfied as a fact that the applicant failed to attend the medical examination arranged with Dr Dickinson and I am also satisfied as a fact that the applicant failed to attend the medical examination arranged with Dr Reddan.

14. I turn now to consider whether the failure by the applicant to attend the medical examinations was attended by reasonable excuse. In Fazlic v Milinginbi Community Inc (1982) 38 ALR 424 the High Court considered whether a worker's refusal to have a recommended operation to his injured back should have resulted in his losing his entitlement to further compensation payments as had been held by the Supreme Court of the Northern Territory and the Federal Court. The High Court allowed the worker's appeal on the basis that the reasonableness of the worker's refusal, judged in the light of his knowledge at the time, is the criterion to determine whether that refusal was reasonable. The court held that the worker had been given minimum information and in the light of that minimum information about the operation his refusal to undergo the operation was a reasonable refusal. But as the High Court held in Taikato v The Queen (1996) 186 CLR 454 at 464 the question of whether there is a reasonable excuse depends upon the circumstances of the individual case and also upon the purpose of the provision which has a defence of reasonable excuse. The test to be applied has its genesis in Liversidge v Anderson [1942] AC 206 at 245 where Lord Aitkin (dissenting) said:

"...the question is whether the words "If a man has" can mean "If a man thinks he has." I am of the opinion that they cannot, ...."

15. In that case the relevant regulation provided "If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations............he may make an order against that person directing that he be detained." While the speeches favoured the Home Secretary the dissenting speech of Lord Atkin is now considered good law (see Qantas Airways Ltd v Cornwall Full Federal Court, 24 July 1998).

16. Whether the refusal or failure to attend in s57(2) may be excused because the refusal or failure was reasonable is to be assessed on an objective basis. In McKinnon v Commonwealth (Hill J, 19 November 1998) the Federal Court referred to Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 and then said:

"There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever."

17. Leave to appeal to the Full Court was refused (McKinnon v Commonwealth [1999] FCA 717, 27 May 1999).

18. In the light of Trajkovski v Telstra (1998) 153 ALR 248 the Tribunal must decide whether it should exercise its jurisdiction in these matters. That is not to say that section 57(2) operates only when a decision is made under the sub-section. The sub-section is self executory. What the Tribunal is required to decide is whether the found facts are such that the subsection does not operate to suspend the proceedings in the Tribunal because the applicant had reasonable excuse for the refusal or failure to attend.

19. There is no dispute that the applicant did not attend either of the medical examinations. There was therefore a failure to attend each appointment which comes within the terms of section 57(2).

20. The only issue to be decided by the Tribunal is whether those failures were "without reasonable excuse". As Hill J explained in McKinnon that decision must be made on an objective assessment.

21. In relation to the medical examination by Dr Dickinson the applicant asserts that the medical practitioner may be biased; the respondent did not provide a list of agreed questions it proposed to put to Dr Dickinson; nor did it agree these questions with the applicant; and the respondent did not provide transport to the examination.

22. I can find nothing in the legislation requiring agreed questions, nor, in my experience, is it the universal practice to agree and or provide the questions put to the examining medical practitioner by the respondent. While such a practice will be desirable in some circumstances there is no obligation on the respondent to follow this course.

23. The applicant was examined by Dr Blue, Orthopaedic Surgeon, in 1998, at the request of the respondent. That fact raises the issue as to whether a further medical examination by another orthopaedic surgeon is reasonable in the circumstances. While the applicant raises specific objections to the examination by Dr Dickinson I have also taken into account the question as to the reasonable need for an examination by another orthopaedic surgeon for medico-legal reasons.

24. This matter has been conducted on the basis that medico-legal reports obtained by the respondent will probably be adverse to the applicant. The applicant may well have other unstated reasons which justify such a view but the Tribunal is not satisfied that there is any basis in fact for such a view. In particular I am not satisfied that Dr Dickinson would give a report unfavourable to the applicant because of a previously cancelled appointment.

25. I am satisfied that the respondent was justified in requiring an examination by a psychiatrist. It is necessary to note, in light of the applicant's submissions, that the clinical psychologist is not a legally qualified medical practitioner, and is therefore not a person within the terms of section 57(1) of the Act and is not a person qualified to make a diagnosis of a medical condition. That is not to suggest that a report by the treating psychologist would be of no assistance. Such a report may well be of considerable assistance to the Tribunal.

26. The request for a psychiatrist's examination is justified by the following:

(a) Dr Blue's report of 21 September 1998 (T243) includes his opinion "that there is quite marked over presentation in her symptoms";

(b) The applicant has made substantial claims on the respondent for treatment by a clinical psychologist (T254); and

(c) The medical certificate by Dr Karen Flegg dated 14 January 2000 refers to an emotional problem in connection with the proposed examination by Dr Reddan which in turn suggests that emotional factors may well be relevant to the claimed condition.

27. I am not satisfied that the examination by Dr Dickinson, an Orthopaedic Surgeon can be accepted as necessary and therefore reasonable in the circumstances. Dr Blue has provided a report after examination (T243) in 1998 and there are earlier reports by Dr Ashman, Orthopaedic Surgeon, Dr Griffiths, Consultant Surgeon, Dr Scott, Occupational Physician, and Dr Gillespie, Orthopaedic Surgeon. In my view a requirement to undertake further examination by Dr Dickinson is not justified and therefore was unreasonable in the light of Dr Blue's report, which updates the earlier specialists' reports (Compare with Re Pepper and Comcare (1995) (unreported), Re De Marco and Comcare (1996) 43 ALD 654).

28. I have come to the conclusion that the applicant had reasonable excuse for refusing or failing to attend the appointment for examination by Dr Dickinson and I so find.

29. In relation to the refusal or failure to attend the appointment for examination by Dr Reddan I am not satisfied that it was reasonable in the circumstances for the applicant to refuse (or fail) to attend the examination. There is no issue as to failure due to oversight. The failure was deliberate and should be characterised as a refusal. The result is that section 57(2) of the Act operates of its own force because I am satisfied that the applicant refused, without reasonable excuse, to undergo an examination by Dr Reddan, a legally qualified medical practitioner as nominated by the respondent and I so find.

30. I am satisfied Comcare had authority under the Act to require the applicant to attend for examination by Dr Reddan.

31. Being satisfied that Dr Reddan's examination and report is relevant to the issues that arise in each of the applications before the Tribunal these proceedings are suspended until the examination takes place. The applications will be removed from the list of applications awaiting hearing by the Tribunal until such time as the applicant attends for examination by Dr Reddan or the respondent withdraws the requirement for the applicant to attend for examination by Dr Reddan.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed:

T G Lowther

Associate

Date/s of Hearing 28 January 2000

Date of Decision 14 February 2000

Representative for the Applicant Mr Leonard

Counsel for the Respondent Mr Howe

Solicitor for the Respondent Sparke Helmore