COMPENSATION - applicant failed to attend a medical examination set up by solicitors for the respondent - whether such examination was a valid requirement within the terms of section 57 of the Safety, Rehabilitation and Compensation Act 1988 - whether proceedings should be suspended pursuant to section 57 - whether there was reasonable excuse for failure to attend - whether the applicant should be required to attend on examination in the future

Safety, Rehabilitation and Compensation Act 1988 ss 4, 54, 57, 68, 69, 70, 73, 74

Fozlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345

Re Health Insurance Commission and Hobbs (1990) 12AAR 285

1. The applicant has applied for review of a reviewable decision by the respondent refusing a claim for compensation for "soft tissue injury to back - injuries from 'plane crash". The applicant's medical practitioner subsequently certified "post traumatic stress disorder" said to have been caused by the 'plane crash.

(a) has the respondent made a requirement within the terms of section 57 of the Safety, Rehabilitation and Compensation Act 1988 (the "Act");

(b) did the applicant have reasonable excuse for not attending for medical examination in accordance with the requirement; and

(c) in the event of a negative response to (a) or a positive response to (b) should the applicant be required to attend such a medical examination.

3. At the hearing Mr Waters, QC appeared for the applicant and Mr Derrington of counsel appeared for the respondent. Oral evidence was given by Dr McLaren, Consultant Psychiatrist, and certain documents were tendered and marked as exhibits.

4. The applicant's employer obtained a psychological report (T10) in relation to a proposed return to work program (T11). The opinion of the psychologist appears to have been taken into account by the respondent when making its primary decision to refuse the claim for compensation.

5. The respondent also obtained a report from Dr McLaren dated 31 March 1999 [T16]. That report was relied upon by the respondent when making the primary decision. Further psychological reports were submitted to the respondent after the primary decision [T22, T23]. A report by Dr Burvill, Consultant Psychiatrist, dated 15 December 1999 [T26] was provided on behalf of the applicant and taken into account in making the decision under review.

6. Document T28 is a report by the employer (Centrelink) to the respondent expressing the employer's dissatisfaction with the applicant and clearly trying to persuade the respondent that the applicant's Post-Traumatic Stress Disorder may be attributable to factors other than the acknowledged cause - the 'plane crash.

7. Taking that material and other material into account the review officer decided to revoke the primary decision disallowing the claim, and substituted a decision accepting liability for Post-Traumatic Stress Disorder up to 21 July 1999. The applicant had commenced employment outside Centrelink on 21 July 1999.

8. On 17 April 2000 the applicant's representative intimated that review of the reconsideration decision in this Tribunal was to be sought and applied for an extension of time [T1]. The Tribunal did not grant an extension of time but the Tribunal's registry accepted the document lodged on 17 April 2000 as a valid application for review.

9. Further material was lodged in the Tribunal including another report by Dr McLaren dated 31 July 2000. Dr McLaren had seen the applicant on 27 July 2000 at the request of the applicant's solicitors in order to prepare a report on his current mental state. Dr McLaren reported that the applicant was distressed throughout the interview and eventually the interview had to be terminated at the applicant's request. Dr McLaren reported continuing significant symptoms of post traumatic disorder. Dr McLaren referred to the real risk of suicide and also referred to the need for medication which was not being provided despite advice from Dr Burvell.

10. By letter dated 11 October 2000 Dr McLaren reiterated to the applicant's solicitors conclusions in his earlier report and added to the effect that the applicant's condition was identified and should not be the subject of a further report. He concluded to the effect that the applicant's refusal to accept treatment was the main problem. In his oral evidence Dr McLaren affirmed his views expressed in writing. I was however left with the impression that Dr McLaren was advocating the applicant's case - he may well have adopted this position because of the applicant's suicidal ideation. He confirmed that the applicant required appropriate treatment before it would be reasonable to put him through a medico-legal examination.

11. The present proceedings have their genesis in a letter dated 19 September 2000 by the Australian Government Solicitor (Comcare's solicitors) to Halfpennys (the applicant's solicitors). The text of the letter is as follows:

"1. We refer to this matter and confirm that an appointment has been arranged for Mr Bruce to see Dr Athey, Consultant Psychiatrist, at 8.00 am on Tuesday, 3 October 2000. We have been informed that the appointment will take approximately one hour.

2. The appointment is at the following address:-

3. Would you please let your client know that I have organised the appointment through Medico-Legal Consultants, in case he has difficulty locating Dr Athey's rooms." [Exhibit 2]

12. The applicant's solicitors responded on 26 September 2000 as follows:-

"Thank you for your facsimile dated 19 September 2000, wherein you advised of an appointment you had arranged with Dr Athey to assess Mr Bruce.

We enclose (*) herewith a copy of a report which we have received from Dr Andrew McDonald dated 22 September 2000 for your information and records. You will see that the report details the distress which Mr Bruce undergoes each time it is necessary for him to retell his story to another medical practitioner.

In the circumstances we decline to make our client available for the appointment.

We enclose (*) herewith a copy of our client's current medical certificate dated 22 September 2000." [Exhibit 1]

13. The report by Dr MacDonald (who I understand to be a general practitioner) records the applicant's apparent distress at having to undergo psychological assessment and records the fact that Dr MacDonald commenced treatment in June 2000. He recommends no further psychological assessment. He also certified the applicant as being unfit for work from 30 September 2000 to 31 December 2000.

14. There is no dispute that the applicant did not attend for examination by Dr Athey on 3 October 2000.

15. In response to the Tribunal the respondent says that it is entitled to act through others, including the Government Solicitor. It also says that there is no evidence of the applicant's excuse for refusing to attend the examination by Dr Athey. (There is also no evidence that the applicant actually refused to attend the examination).

16. The applicant's counsel referred the Tribunal to a number of prior decisions in relation to section 57. The essence of the applicant's case is that the medical evidence shows his mental state to be such that a requirement to attend for medico-legal examination at this time could well be life threatening.

(a) Has the respondent made a valid requirement within the terms of section 57 of the Act?

17. So far as is relevant section 57(1) provides that where an employee has made a claim for compensation under section 54 of the Act the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.

18. For present purposes it is clear that "relevant authority" is defined by section 4(1) of the Act to mean Comcare. "Comcare" means the body corporate established by section 68 of the Act (s 4(1)). The functions of Comcare are set out in section 69 of the Act and its powers are set out in section 70 of the Act ie it has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

19. Comcare is a body corporate with perpetual succession and is constituted by a Chief Executive Officer appointed by the Governor General (s 74).

20. By section 73B of the Act Comcare, may, in writing, delegate to an officer of, or a person employed by, the Commonwealth or a Commonwealth authority all or any of Comcare's functions and powers.

21. Contrary to Mr Derrington's submission I am satisfied that the functions and powers can only be exercised by Comcare or its delegates. It may also be the case that a person specifically authorised to do so may act in the name of Comcare rather than by way of delegation of functions and powers. It is trite to say that where a delegate acts to exercise delegated functions and powers then that act is an act of the delegate rather than an act of Comcare itself.

22. In this case there is nothing to show that Comcare or a delegate of Comcare required the applicant to attend for medical examination within the terms of section 57 of the Act. I do not understand the Government Solicitor's letter of 19 September 2000 (Exhibit 2) to go beyond notifying arrangements for the appointment with Dr Athey. There is no mention of a requirement by Comcare within the terms of section 57 of the Act. The letter does not purport to be such a requirement.

23. It seems to me that section 57 is a provision that has serious consequences for claimants under the Act so that it is to be construed strictly according to the plain words and intent of those words. I am satisfied that the section requires Comcare (by itself or through a delegate) to consider whether a medical examination is required and then to notify such a requirement to the claimant.

24. In my view a letter by Comcare's solicitor is not such a requirement and is not therefore a valid requirement for the purposes of section 57. I am satisfied that the fact of the Government Solicitor acting in this case (rather than private solicitors) makes no difference to the issues to be considered.

(b) Did the applicant have reasonable excuse for not attending the medical examination?

25. Clearly if there was no valid requirement to attend for medical examination then section 57 simply has no operation.

26. However, if I be wrong about the Government solicitor's letter of 19 September 2000 not being a requirement within the terms of section 57 the question is whether the applicant had reasonable excuse for not attending the medico-examination notified in the Government Solicitor's letter.

27. I am satisfied, on the material before me that the applicant's mental condition is unstable at this time and Dr McLaren has grounds for his view about suicidal ideation. In December 1999 Dr Burvill described the applicant's current condition as severe in degree [T26]. The applicant did not accept treatment from Dr MacDonald until six months after he saw Dr Burvill. That material satisfies me that the applicant is at risk and needs treatment at this time rather than a further medico-legal investigation.

28. In these circumstances there is a reasonable explanation for his solicitors not making him available for examination by another psychiatrist (Dr Athey). Whether the solicitors' action was a constructive refusal, given there is no evidence that the applicant refused to attend, is a point I need not decide. Clearly there was a failure to attend.

29. In the circumstances were there grounds to infer a reasonable excuse for the failure to attend the examination by Dr Athey? While section 57(2) will operate of its own force (Buck v Comcare Finn J 17 May 1996 No ACT G49 of 1995) to suspend the proceedings there must be a decision by Comcare (or this Tribunal - S 43 Administrative Appeals Tribunal Act 1975) to determine whether there was a refusal or failure to undergo examination without reasonable excuse. If no excuse is offered and there is a relevant refusal or failure then the section is self operating to suspend proceedings. If an excuse is offered and there are proceedings under Part VI then it is a matter for this Tribunal to determine whether there is reasonable excuse.

30. In my view there are grounds to infer that the applicant had reasonable excuse for the failure to attend for examination. If it was necessary to do so I would so find. Unlike cases such as Re Pepper, Decision No 10339, Re De Marco_,_ Decision No 11291, and Re Williams, Decision No 10791 this is not a case where it might be thought that there has been an adequate investigation by Comcare. This is a case where the circumstances are such that it is not prudent to pursue a further medico-legal examination at this time. It is on that basis that the failure to attend by the applicant is not without reasonable excuse (_F_ozlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345.

31. That will change however if it is the fact that the applicant fails to accept reasonable treatment for Post-Traumatic Stress Disorder.

(c) Should the applicant be required to attend a further psychiatric examination for medico-legal purposes?

32. In my view he should. Comcare is entitled to be dissatisfied with Dr McLaren's report on the grounds that it lacks objective assessment. It is also entitled to obtain a report after the applicant's condition has been stabilised with treatment.

33. I can see no reason why it would not be reasonable for Comcare to require the applicant to undergo an examination by Dr Athey or another psychiatrist after mid January 2001. That is, however, a matter for the respondent. Notwithstanding what was said in the somewhat special circumstances in Re Health Insurance Commission and Hobbs (1990) 12AAR 285 I am not satisfied that it would be appropriate for the Tribunal to require a medical examination in this case

34. The formal decision of the Tribunal will be that the respondent did not make a valid requirement for a medical examination within the terms of section 57 of the Act. It follows that section 57 has not operated to suspend these proceedings.

35. The costs of this application for directions are reserved to the hearing of the application.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of K L Beddoe (Senior Member)

Signed: .....................................................................................