MT v CGU Workers Compensation (Vic) Ltd (Human Rights) [2013] VCAT 1871

1. The Tribunal's rulings on the respondent's jurisdictional challenges are set out in the attached reasons.
2. The hearing will re-commence part heard before me at 10 am on 15 November 2013 at 55 King Street Melbourne, for an estimated duration of one day.

1. The complainant has alleged contraventions by the respondent of the Health Records Act 2001 (Vic) (Act), and seeks consequent relief. At the outset of the hearing, the respondent raised preliminary issues that the Tribunal should not receive evidence about various matters alleged in the complainant's Particulars of Claim and in portions of her witness statements filed.
2. The respondent argues this because it says portions of the claim are outside the Tribunal's jurisdiction on one or both of two grounds. First, that the Tribunal may only consider alleged contraventions of the Act contained in the original complaint referred to it by the Health Services Commissioner. Secondly, portions of the claim are within the County Court's exclusive jurisdiction and so outside the Tribunal's jurisdiction. This is my decision on these arguments.

The s 39 argument in general

1. The respondent bases its second argument on s 39 of the Accident Compensation Act 1985 (Vic) (AC Act) and section 7(1) of the Act. Section 39 of the AC Act relevantly provides :

(1) Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under this Act arising after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992, out of -

(a) any decision of the Authority, employer or a self-insurer...

1. The respondent is an authorised agent of the Authority (WorkSafe), appointed under s 23 of the AC Act. For the respondent, Ms Richards submitted (and I have no reason to doubt) that the respondent acts on WorkSafe's behalf in relation to the complainant's claim for compensation and performs the functions conferred on WorkSafe by s 20 of the AC Act in relation to the claim.
2. Subsection 7(1) of the Act provides:

If a provision made by or under this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.

1. The respondent submitted that the above two provisions combine to exclude any jurisdiction the Tribunal would otherwise have in relation to any question or matter under the AC Act arising out of decisions made by CGU on behalf of WorkSafe about the management of the complainant's worker's compensation claim. The Supreme Court case of WorkCover Authority v Sharma (Sharma)[1] was cited in support.
2. In Sharma, Emerton J declined to hear a counterclaim relating to underpayment of weekly benefits under the AC Act. Applying sub-s 39(1), her Honour held that 'decisions made under the Act as to the injured person's pre-injury average weekly earnings fall into this category', such that the Supreme Court had no jurisdiction to hear and determine a dispute about the level of Mr Sharma's pre-injury average earnings.[2]

Provisions of the AC Act relevant to four decisions

1. Ms Richards then referred to the various functions conferred on WorkSafe under section 20(1) of the AC Act to:
   • (1) receive and assess and accept or reject claims for compensation (aa)
   • (2) pay compensation to people entitled to compensation under the AC Act (b)
   • (3) ensure that the scheme of accident compensation is competitive and fully funded (d)
   • (4) develop and implement programs to provide incentives to employers and to assist employers in improving occupational health and safety and return to work results (ta)(ii)
   • (5) facilitate the development of rehabilitation plans and facilities to assist injured workers (u); and
   • (6) monitor the operation of occupational health and safety, rehabilitation and worker's compensation arrangements (u).
2. She also referred to section 20(2) of the AC Act which requires WorkSafe in performing its functions to:
   • (1) ensure the efficient, effective and equitable occupational rehabilitation and compensation of persons injured at work (b); and
   • (2) ensure the financial viability and efficient operation of the workers compensation arrangements (c).
3. Ms Richards submitted that various matters canvassed in the Particulars of Complaint and the complainant's witness statements are within the exclusive jurisdiction of the County Court and so outside the Tribunal's jurisdiction. These include the complaint about four of the respondent's decisions in managing her workers' compensation claim.
4. The first of these is identified as the respondent's decision to engage Quest Investigations to undertake surveillance of the complainant, a decision said to be made under sub-s 20A(1) of the AC Act, which provides:

Subject to this Act, the Authority has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions and to enable it to achieve its objectives.

1. The respondent acknowledged there is no specific function or power in the AC Act to arrange surveillance. However, it argued that a decision under s 93CD of that Act about whether to continue weekly compensation payments beyond 130 weeks, encompasses a decision to arrange surveillance. It identified the issue as whether to continue those weekly payments or terminate them under s 114 of that Act.
2. The respondent did not take me to these specific provisions but it seems the relevant parts of them are follows. Section 93CD enables a worker to apply under sub-s (1) to the Authority (effectively, the respondent) 'for a determination that the worker's entitlement to weekly payments does not, or will not, cease by reason only of expiry of the second entitlement period'. Subsection 93CD(4) relevantly provides that the respondent must not approve an application under sub-s (1) unless it is satisfied that (amongst other things) -

...(b) because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work which would increase the worker's current weekly earnings.

The Authority or self-insurer may in accordance with this Act terminate a worker's entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments.

1. The respondent did not identify the precise provision under which such termination could occur. However, strictly, if payments are not 'continued' under s 114, there should be no need to terminate them.
2. I accept that a decision whether to continue payments is a decision made under the AC Act. I also accept that a decision to arrange surveillance to gather information to assist in deciding whether to continue payments, is a decision supported by sub-s 20A(1) when read with s 93CD. The wording of sub-s 39(1)(a) is not as clear as it could be. Is it open to me to conclude that the decision to arrange surveillance is a question or matter within the County Court's exclusive jurisdiction, being a question or matter under the AC Act (arising) out of CGU's decision to arrange surveillance? I shall defer this question for the moment.
3. Secondly, there is the decision to refer the complainant for a vocational assessment by Ayres Management Services, said to be made under s 202 of the AC Act. Section 202 provides:

A worker who has an incapacity for work must, when requested to do so by the employer, Authority or self-insurer, actively participate and co-operate in any assessment of -

1. Thirdly, there is the decision to refer the complainant to/require her to attend independent medical examiners (IMEs), 'including the selection of the IMEs, the selection of information provided to IMEs, the reports requested from IMEs and the opinions provided to them'.[3] This decision is said to be made under s 112 of the AC Act. The IMEs are identified as Dr Entwisle, Mr Wilks and Dr Varma.

The Authority or a self-insurer may require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner provided and paid for by the Authority or self-insurer.

1. The fourth decision identified is the decision to require the complainant to attend a meeting/interview at the respondent's office, pursuant to s 204 of the AC Act. Subsection 204(1) provides:

(1) A worker who has an incapacity for work must, as required by the Authority or self-insurer -

(a) participate in an interview with the representative of the Authority or self-insurer for the purpose of enhancing the worker's opportunities to return to work; and

(b) actively participate and co-operate in the interview referred to in paragraph (a) in order to comply with his or her obligations under this Division.

1. The four decisions above are not of the same type as that in Sharma's case. I am not sure they can be fully equated with that decision, which concerned a worker's substantive entitlements. I instinctively doubt whether s 39 gives the County Court exclusive jurisdiction to review every decision made under the AC Act by the Authority or its authorised agents. Specifically, I question whether s 39 gives the County Court jurisdiction to review decisions of an administrative nature made under the AC Act in managing a worker's claim.
2. However, the wording of s 39 is very broad. It is also to be read with sub-s 7(1) of the Act. The County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under the AC Act (arising) out of any decision of the Authority. Despite my misgivings, the second, third and fourth decisions above appear to be captured by this wording. Less clearly, the first decision (to arrange surveillance) is also arguably captured.
3. Even if I am wrong in that conclusion, the complainant has not pointed to any provision under the Act (or any other Act) giving the Tribunal jurisdiction to review whether CGU properly exercised its powers to make each of the four decisions above. The Act deals with the management of health information, not whether an agency has properly exercised its statutory powers, or the merits of decisions purportedly made pursuant to those powers. Therefore, it is outside the Tribunal's jurisdiction to review the substance of decisions made under the AC Act to arrange surveillance, refer to a vocational assessment, require attendance for examination by an independent medical examiner, and require attendance at an interview.

1. I will not go through the Particulars of Claim and complainant's witness statements to identify for striking out, which parts fall at this hurdle. The respondent has drawn my attention to various paragraphs. Many of them also contain complaints about the respondent's collection, use and disclosure of the complainant's health information in the process of giving effect to the above substantive decisions.
2. For instance, the respondent refers to the heading 'Collection of information by covert surveillance and disclosure of medical information to Quest Investigations' in the Particulars of Claim. Some of the complaint in that section is about the merits of the decision to arrange surveillance. This is outside the Tribunal's jurisdiction. Some of the complaint in that section concerns the disclosure of surveillance reports to Dr Varma, and the disclosure of documents to Quest Investigations. Those appear at first glance to be issues about how the complainant's health information has been handled. Are they within the Tribunal's jurisdiction under the Act? The respondent did not provide any case directly relevant to this question, which was not in issue in Sharma.
3. As a further example, in relation to the decision to require attendance for examination by an independent medical examiner, the respondent submits that these matters are within the County Court's exclusive jurisdiction and so outside the Tribunal's jurisdiction:

The referral of the complainant to...IMEs, including the selection of IMEs, the selection of information provided to IMEs, the reports requested from IMEs and the opinions provided by them....

1. The respondent refers to (amongst other paragraphs) the section headed 'Disclosure to and collection of information from IMEs' in the Particulars of Claim. In this section the complainant complains about matters such as the contents of the IMEs' reports, the documents disclosed to them about the claim, what the IMEs asked the complainant about as part of their examination, what the examiners were asked to assess.
2. It is difficult to separate the merits of the decision to require the complainant to attend an IME for examination, from the process of carrying out that decision, to the extent that that process involves (relevantly) a collection, use or disclosure of the complainant's health information. Decisions about what information to provide to an IME and what information to request or collect from an IME, seem inextricably linked with the merits of the decision to require attendance for examination by the IME. Therefore, such decisions may well be outside the Tribunal's jurisdiction under the Act.
3. Because of the detailed nature of the claim, I prefer to defer a final decision about each alleged contravention until after the hearing. I will manage issues about admissibility of evidence during the substantive hearing.

Tribunal's jurisdiction to hear 'complaint referred'

1. Ms Richards submitted that the Tribunal's jurisdiction is limited to contraventions of the Act and the Health Privacy Principles alleged in the complainant's original complaint dated 13 June 2012. The Health Services Commissioner referred that complaint to the Tribunal. Therefore, Ms Richards argued it was not possible to hear about contraventions alleged in subsequent documents that were not the subject of the original complaint referred.
2. I was taken through the process of how the complaint reached the Tribunal. The complaint about an alleged interference with privacy was made to the Commissioner under sub-s 45(1). The Commissioner accepted the complaint but declined to further entertain it under sub-s 56(1)(c). The complainant then required the Commissioner to refer the complaint to the Tribunal for hearing under Division 6 of Part 6 of the Act: sub- s 57(1).
3. Section 74 (in Division 6) relevantly provides that the Tribunal may hear a complaint referred to it by the Commissioner under section 57. That is the source of the Tribunal's jurisdiction in this case.

Scope of Tribunal's 'complaint referred' jurisdiction and power to amend

1. Ms Richards was not aware of any decided case considering the scope of the Tribunal's jurisdiction under these 'complaint referred' provisions of the Act. However, she pointed to Tribunal decisions considering a similar referral regime under the previous Equal Opportunity Act 1995 (Vic).
2. In Kay v Bracks[4] Vice President Judge Davey struck out paragraphs of Particulars of Complaint on the basis that:

...although the Tribunal has a general power of amendment under section 127 of the VCAT Act because it is subordinate to the enabling legislation (section 159 of the VCAT Act) it cannot amend a complaint so as to introduce a fresh complaint which has not been the subject of a complaint to the Commission.[5]

1. The original complaint was of sexual discrimination but the Particulars of Complaint in the Tribunal included alleged sexual harassment. That constituted 'a new complaint, which was not before the Commission', so it had not been referred to the Tribunal.[6]
2. Similarly, in other cases it has been held that a complaint under the Equal Opportunity Act 1995 (Vic) could not be amended to include a fresh claim or cause of action.[7]
3. In Youd-Homes v Milford Hall Pty Ltd & Anor[8] Deputy President McKenzie refused an application to amend Particulars of Complaint, stating as follows:

The power to amend documents given to VCAT must be read in light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the Equal Opportunity Act. The implication of the scheme of that Act on that power [of] amendment of documents, is that a fresh series of allegations which are not in the original complaint, and cannot in some way be extrapolated from it, ought not to be brought in by amendment at the VCAT stage, but ought properly to be the subject of a fresh complaint.

There are some cases where the Tribunal has allowed a complaint to be amended and further particulars filed, where it is simply a question of re-characterising in some legal way, facts that are already in the original complaint, or where the original complaint contains an allegation of a continuing pattern of contravention of the Equal Opportunity Act and all that is done is to add that pattern.[9]

1. The issue is whether the allegations in the Particulars of Complaint said to be outside the scope of the original complaint, introduce a fresh complaint, claim or cause of action. This is (for example) as opposed to simply re-characterising facts, or adding to a continuing pattern of contravention, already alleged in the original complaint.

1. In very broad terms, in the original complaint dated 13 June 2012 referred to the Tribunal, the complainant complains (under discrete headings) that the respondent disclosed medical documents to:
   • Ayres Management Services for vocational assessment;
   • Quest Investigations for surveillance;
   • IMEs for their assessments.
2. I do not need to consider whether the merits of the four decisions discussed above are within the original complaint as I have already decided they fall outside the Tribunal's jurisdiction.
3. As part of her complaint in the Tribunal about the surveillance, the complainant complains about the respondent's disclosure of surveillance reports to Dr Varma, and of her claim form and other documents to Quest Investigations.[10]
4. The complainant did complain in her original complaint about disclosure of documents to Quest Investigations. This is so although, as noted, to the extent that this disclosure might be said to be inextricably linked with the merits of the decision to conduct surveillance, that is an issue for the hearing.
5. In her original complaint the complainant mentions (although does not directly complain about) the disclosure of surveillance reports to Dr Varma. She does mention this as an issue in her further letter to the Health Services Commissioner dated 27 August 2012[11] replying to the respondent's response to her original complaint. However, that letter did not form part of her original complaint dated 13 June 2012.
6. The Commissioner's referral to the Tribunal was by letter dated 3 October 2012. Whilst it enclosed the original letter of complaint dated 13 June 2012, it did not enclose the complainant's further letter of 27 August 2012.
7. Ms Richards said she had not seen the 27 August 2012 letter before the complainant produced it at the hearing. I believe it was on the Tribunal's file but that does not mean the respondent would have received it before the hearing. Ms Richards says the Commissioner did not notify the respondent of this further letter. In compliance with s 48 of the Act the Commissioner had only advised the respondent of the 13 June 2012 letter. As Ms Richards submitted, the complainant could make a fresh complaint to the Commissioner about any matters raised since the 13 June 2012 letter.
8. The complainant raised this issue with the Commissioner before the referral such that it is not a completely new issue raised for the first time in the Particulars of Claim. However, I doubt whether the Tribunal's power in s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) allows me to extend the scope of the complaint referred to the Tribunal under the Act. Because the complainant did not complain about the disclosure of surveillance reports to Dr Varma in her original complaint which was referred to the Tribunal, the Tribunal has no jurisdiction to consider this issue pursuant to s 74 of the Act as part of that 'complaint referred'.
9. In relation to the decision to refer the complainant for a vocational assessment by Ayres Management Services, the respondent mainly cites as impugned those paragraphs of the Particulars of Complaint questioning the merits of the decision.[12] However, it does also cite as impugned paragraphs of the statements of Dr Piperoglou and Ms Field questioning both the merits of the decision and the disclosure of documents to Ayres. [13]
10. In her original complaint the complainant complains both about the disclosure of her medical documents to Ayres for the vocational assessment, and the merits of the decision to refer her for that assessment.[14] Nevertheless, the merits of the decision are otherwise not within the Tribunal's jurisdiction and so cannot be considered.
11. To the extent that the issue of the disclosure of medical documents to Ayres might be said to be inextricably linked with the merits of the decision to refer for a vocational assessment and so outside the Tribunal's jurisdiction for that reason, that is an issue for the hearing.
12. I have accepted above that the merits of the decision to refer the complainant to IMEs, is otherwise outside the Tribunal's jurisdiction. It also seems that this was not raised in the original complaint, although the disclosure of medical documents to IMEs was raised as an issue. Again, whether the disclosure of medical documents to IMEs is inextricably linked with the merits of the decision to refer, is an issue for the hearing.
13. That leaves the remainder of the respondent's submissions about allegations being outside the Tribunal's jurisdiction purely because they did not form part of the original complaint dated 13 June 2012.
14. The first of these concerns the allegations that health information was, or might have been, provided to the complainant's employer in 2010 and 2011.[15] However, in her original complaint the complainant states[16]: 'the disclosure of my private information to my employer has been a constant concern due to the numerous case managers I've had in the WorkCover system.' I am therefore satisfied that she did raise this issue in her original complaint.
15. Secondly, the respondent submits that the complaint about the disclosure of emails to Dr Varma on 17 May 2012 was not raised in the original complaint and so is outside the Tribunal's jurisdiction. The complainant says she did not include this in her original complaint because she was not aware of it then. Therefore, this issue is not part of the 'complaint referred'.
16. Thirdly, the respondent submits that the complaint about 'the acts or omissions of third parties such as Ayres...' is outside the scope of the original complaint. It refers to the Particulars of Claim alleging Ayers' delay in returning medical documents after cancelling the vocational assessment,[17]and complaining about Quest Investigations being allowed to store (health) information disclosed by the respondent to it.[18]
17. The complainant does not raise either of these issues in the original complaint. Therefore, they are not part of the 'complaint referred'. The complaint was against CGU, not Ayres or Quest Investigations.
18. Fourthly, the respondent submits that the allegation about non-disclosure of Dr Varma's second report is beyond the scope of the original complaint. I agree. It is not part of the 'complaint referred'.
19. Fifthly, the respondent submits that the allegation of non-disclosure of the report of IME Dr Entwisle to the complainant's treating GP Dr Wils, is beyond the scope of the original complaint. I agree. It is not part of the 'complaint referred'.
20. Sixthly, the respondent submits that the allegation of transmission of health information by email,[19] is outside the scope of the original complaint. In the original complaint the issue is raised of 'why ordinary mail was being used to distribute confidential medical documents to third parties' as opposed to 'more secure methods such as registered mail'.[20] I consider the complaint about email transmission to be factually linked with this issue so it should be regarded as within the scope of the original complaint. Therefore, it is part of the 'complaint referred'.

1. The respondent's objections above are based on an analysis of the Particulars of Complaint and witness statements filed on behalf of the complainant. The complainant's case is confined to the issues raised in those documents. However, these documents should be read subject to the rulings I have made above excluding allegations about the merits of the four decisions, and allegations of other matters which I have found are not within the scope of the 'complaint referred' dated 13 June 2012.

[1] [2011] VSC 641, [112].

[3] Respondent's submission paragraph 14.

[4] [2000] VCAT 2304 (30 November 2000).

[7] Burroughs v Victoria (2002) VCAT 1655 decision of DP McKenzie, cited by SM Nihill in Tate v Department of Education and Early Childhood Development [2012] VCAT 973 at [14]- [17], where she held that additional claims made by the applicant 'first as to the placing of fifth grade students...in the relocatable classroom late in 2011, and secondly as to the alleged victimisation by way of "looking and staring" are fresh complaints which had not been the subject of the complaint to the Commission. They relate to different periods of time from the original complaint, different incidents and even different people, for example the assistant principal". Therefore, the complaint could not be amended: paragraphs 17 and 18.

[8] (A357/02, 17 April 2003), cited from by SM Megay in Jennings v Department of Education and Early Childhood Development (Anti-Discrimination) [2012] VCAT 131 at paragraphs [45]-[47].

[9] Paragraph 8 of DP McKenzie's reasons.

[10] Page 13 Particulars of Complaint under heading 'Collection of information by covert surveillance and disclosure of medical information to Quest Investigations;' paras 13 and 17 and attachment L witness statement of complainant; statement of Dr Piperoglou paras 5, 13 and 14, statement of Ms Field para 9.

[12] In para 5 of its submissions it does not refer to as impugned those paragraphs (7 onwards) under the 'Disclosure to Occupational Services Provider Ayres Management Services' heading of the Particulars of Complaint at pp 9 and 10, which complain about the disclosure of medical documents to Ayres. Similarly, [18] to [20], [22], [26] and attachment P and S and W of the complainant's witness statement are said to be affected and they deal with the merits of the decision. Part only of [21] and [28] of the complainant's witness statement is said to be impugned, presumably that part questioning the merits of the decision, not the part questioning the disclosure of medical documents to Ayres. It is not clear how any part of [27] is relevant to the vocational assessment.

[13] Paragraphs [5] to [11] of Dr Piperoglou's statement, paragraphs [12] and [14] Ms Field's statement.

[14] This is so although that complaint about the merits (for example, in the last paragraph on p3) is under the heading relating to 'medical documents disclosed'.

[15] Reference is made to [4] to [6] and under the heading 'Disclosure to employer' of the Particulars of Claim, the complainant's statement at [4] to [5] and [7] and attachments B, C and F, and Dr Piperoglou's statement at [4].

[17] [28] to [32] Particulars of Claim, [23] and part of [24] of the complainant's statement.

[18] Heading 'Retention of health information by organisation other than the health provider'.

[19] Made in paragraph [9] of the complainant's statement.