The applicant's complaint to the Health Services Commissioner
[2]
As is usual under the HR Act, Mr Reaper initially made his complaint to the Health Services Commissioner. With the assistance of the Commissioner's staff, Mr Reaper submitted a complaint summary. Mr Reaper said that the complaint concerned the manipulation of health documents and or the recommissioning of those documents for personal gain at the expense of the claimant's health and wellbeing. Mr Reaper noted in brackets that the complaint was not limited to the particular instance being discussed.
The document in issue was identified as a MPOL Group Surveillance Report dated 17 January 2012 (the surveillance report). Mr Reaper sought for the surveillance report to be made void and not be made available to any person or organisation and that any person/organisation that may have referred to the surveillance report to form an opinion and/or report 'be annulled'. He also sought a letter of apology from QBE and MPOL Group Pty Ltd (MPOL Group) and for changes to QBE's use of revised reports.
In order to understand the complaint is it necessary to describe the events surrounding the surveillance report.
QBE engaged MPOL Group to undertake surveillance of Mr Reaper and to provide a report. Surveillance was undertaken on 12 and 13 January 2012. A report was written on 17 January 2012 and sent to QBE. The report described the surveillance which consisted of MPOL Group employees observing Mr Reaper's home and his coming and going from his home. The report refers to him being collected by a taxi, being driven to a pre-arranged medical appointment and being taken home on the first day. On the second day Mr Reaper was not sighted.
The report also sets out the results of MPOL Group's preliminary searches. Those results included Mr Reaper's address and telephone number. It also included an entry relating to a Google search. Evidently that search located a YouTube video of someone called Brett Reaper driving a sports car. The report included a section in which the 'Alleged injury' was noted as 'Back pain - Crohn's Disease'.
Returning to the complaint summary, Mr Reaper explained that he received a letter dated 11 July 2012 which included the surveillance report. After perusing the report, Mr Reaper noticed what he refers to as 'falsified information' which he said was misleading and included personal health information. The Brett Reaper referred to in the Google search is not the complainant. Mr Reaper did not make a workers' compensation application in respect of or arising from Crohn's disease. I will refer to these two pieces of information as the incorrect information.
Mr Reaper sent a complaint about the content of the surveillance report to WorkSafe but did not receive a reply. He then lodged a complaint with QBE on 2 September 2012. On 10 September 2012, Mr Reaper received an email from a Mr Craig Smith. Mr Reaper says that Mr Smith 'concurred' with his view that the report was false and misleading and contained personal health information.
Mr Smith arranged to have the report revised to remove references to the Google search and to the injury relating to Crohn's disease.
Mr Reaper complained that, by the time he became aware of the content of the surveillance report and by the time it had been revised, it had been in circulation to medical and other health practitioners for some eight months. He said that those persons relied on the information in such a report as being factual and reliable so as to form medical and like opinions. He said:
[3]
MPOL's Report is anything but factual or reliable; it is information that has been purposefully corrupted so as to deliberately bring my claim into disrepute.
[4]
Mr Reaper said that his complaint concerned:
The failure to disclose when a health document/report has been revised;
QBE releasing personal health information and/or MPOL Group accessing and recording personal health information;
MPOL Group falsifying a report which was used to assess his health and health services;
QBE distributing the original falsified MPOL Group report;
QBE continuing to retain and distribute a 'revised' copy of the falsified MPOL Group report;
QBE failing to report/act upon the falsities exposed in the original MPOL Group report; and
Aiding in deception by covering-up the breaches in the known 'revised' report.
Mr Reaper then said:
[5]
The MPOL Report has been doing the rounds for some six months before I was notified that surveillance was conducted and the Report existed. By the time QBE replied to my complaint(s), the MPOL Report had been in circulation for 8 months. Medical & like practitioners rely on such information to be factual and reliable so as to form medical & like opinions, MPOL's Report is anything but factual or reliable; it is information that has been purposefully corrupted so as to deliberately bring my claim into disrepute.
[6]
Mr Reaper went on to raise, in more general terms, concerns about the withholding and non disclosure of documents and reports for extensive periods of time between activities such as surveillance and the release of a report about that surveillance. He also raised concerns about people in his position not being aware how often a report is revised. He also noted that QBE did not forward a letter, advice or brochure informing him about his rights and obligations before the investigation was conducted. I understand that comment to refer to the surveillance investigation.
The Commissioner declined to entertain the complaint under section 51(1)(f) of the HR Act. That section provides that the Commissioner may decline to deal with a complaint where the act or practice complained about is the subject of an application under another enactment and the subject matter of the complaint has been or is being dealt with adequately by that means. The Commissioner concluded that QBE acknowledged that aspects of the surveillance report were false and misleading and organised for the report to be amended. The other outcomes raised by Mr Reaper were considered more properly dealt with by WorkSafe under the Accident Compensation Act 1985 (Vic) (AC Act) and were not outcomes which were achievable under the HR Act.
[7]
On 5 July 2013, Mr Reaper filed with the Tribunal a document which set out in detail the background to and some of the substance of the complaints. That background discussion included:
[8]
1.23 The respondent failed to protect the health information from misuse by its own staff. The disclosure has resulted in the corruption of every WorkSafe IME [independent medical expert] opinion and decision of the Respondent regarding the Complainant's WorkCover Claim over the past 12 months.
[9]
1.43 The respondent had an obligation to report the breaches in the 2012 MPOL Report to the applicable regulatory body(s), instead the Respondent relied on the 2012 MPOL Report and further reports corrupted by the 2012 MPOL Report to make decisions pertaining to the Complainant's weekly payments, medical & like expenses and, to wit, Civil Law Claim.
[10]
In paragraphs 2.1 to 2.12, Mr Reaper asserts that QBE breached sections 25(3)(c) and 21(1) of the HR Act. He also claimed that QBE had breached HPP 1.1, HPP 1.5, HPP 2.2, HPP 3.1, HPP 4.1, HPP 4.5, HPP 6.6, HPP 6.7 and HPP 6.8.
The document then contains a heading which says 'The breaches alleged by the Complainant include, but is not limited to the following'. Under this heading in paragraphs 2.13 to 2.31 Mr Reaper sets out a chain of communication between QBE, WorkSafe staff and various medical practitioners. The series of events purport to show that the surveillance report containing the incorrect information was given to a Dr Fraser who prepared a medical report about Mr Reaper, relying on that report. Mr Fraser's report and the surveillance report were said to have been given to other practitioners and persons and decisions were made about Mr Reaper's entitlement to certain payments and other benefits under the AC Act having regard to those documents.
Under heading 3, 'Additional Matters' Mr Reaper says:
[11]
The 2012 MPOL Report has corrupted every WorkSafe IME opinion and Respondent's decision over the past 12 months. It was the Respondent's choice whether to make the 2012 MPOL Report available to WorkSafe IME's and/or rely on the 2012 MPOL Report in the Respondent's own decision making processes. Rather than allow an IME to rely on their own findings, the Respondent appears to have relished the continual escalation of the false and misleading 2012 MPOL Report so as to purposefully bring the Complainant's WorkCover Claim into disrepute with the ultimate intention of ceasing the Complainant's entitlement to compensation and medical & like services.
[12]
The Complainant has more than a dozen Medical Reports that contradict the Respondent and the Respondent's IME opinions regarding the status and ability of the Complainant. The Complainant's Medical Reports are opinions produced by Medical Practitioners based on their own findings and do not reference or rely on the likes of the 2012 MPOL Report or corrupted WorkSafe IME opinions.
[13]
The 2012 MPOL Report and the Respondent's decision making processes has infected every aspect of the Complainant's civil law claim in the County Court of Victoria [Case ID: C1-12-00872]. The costs of which should not be worn by the Complainant.
[14]
Mr Reaper set out under the heading 'Restitution' what he sought from the Tribunal. The first item summarised the powers of the Tribunal under section 78(1)(iii) of the HR Act. Item 2 says that all versions of the surveillance report ought to be made void and not available to any other person or organisation and that any reliance or reference to that report in an opinion or decision or report be annulled. Item 3 seeks a change to QBE's policies such that all amended, revised or edited reports will be clearly noted on each page of the document.
Items 4 to 16 concern matters related to his workers' compensation claim. For example, Mr Reaper seeks:
Acceptance of his workplace injuries in accordance with certain medical reports and opinions;
The reinstatement of compensation payments under the AC Act;
The reinstatement of the taxi services;
The approval of a request for modification to a vehicle and contributions to the purchase cost of a vehicle;
Payment of costs such as home help, physiotherapy, chiropractic treatment and remedial massage therapy;
Payment of legal costs associated with his workers' compensation claim; and
Payment of the maximum available amount for pain and suffering.
In item 17, Mr Reaper seeks a substantial letter of apology from QBE. In items 18 and 19, Mr Reaper refers to the Tribunal's power to award compensation and indicates the amount is at the Tribunal's discretion.
[15]
Totality of complaints and evidence to be presented?
[16]
In his reply to the section 75 application, Mr Reaper raised concerns about the fact that the application had been made before particulars and witness statements had been filed. He said that he had been waiting for QBE to submit its witness statements so he would know what such a statement entailed, who was deemed a witness and if a witness statement could 'undermine original evidence'. Mr Reaper said that, on 23 August 2013, the Tribunal sent him an email clarifying the purpose of a witness statement. On the same day, QBE filed its submissions in support of its section 75 application.
Mr Reaper says that QBE has incorrectly cited the complaints and that it has speculated on what they were. He referred to QBE's submissions as containing its interpretation of the complaints he had made. His written submissions did not make reference to further complaints or explain how they had been misinterpreted by QBE.
A review of the procedural orders made by the Tribunal and the Tribunal file show that:
Mr Reaper was required to file and serve his particulars of claim by 8 July 2013. That requirement appears to have been met when the Complainant's Brief Statement of Complaints was filed on 5 July 2013;
QBE was required to file and serve particulars of defence by 29 July 2013. That document was filed on 30 July 2013;
Mr Reaper was required to file and serve witness statements on or before 2 August 2013;
On 13 August 2013, QBE made its section 75 application; and
The orders for witness statements and material in reply were set aside on 26 August 2013. Mr Reaper was required to file and serve any response to QBE's application under section 75 of the VCAT Act by 2 September 2013 and that application was listed for hearing.
At the section 75 hearing, Mr Reaper did not tell the Tribunal about any other complaints he had. The procedural orders do not make provision for amended particulars to be filed. The document filed on 5 July 2013 has been understood as containing the totality of Mr Reaper's complaints.
As to the witness statement he intended to file, Mr Reaper said that he wished to clarify matters raised in his Statement of Complaints and that he wished to say more about discrepancies in the use of the surveillance report had been used and the HPPs. It appeared that the evidence would concern in part how the surveillance report was used separate from QBE's decision making processes.
In his written submissions on the section 75 application and at the hearing, Mr Reaper spoke about QBE misleadingly connecting a 14 July 2007 claim form with one signed on 14 September 2007.
I will return to the significance of these matters shortly.
[17]
QBE asks the Tribunal to strike out of parts of the complaints and to summarily dismiss the remaining complaints on a combination of the following four bases:
(a) A previous decision of the Tribunal about matters relevant to this complaint is binding and so some of the matters which have been raised by Mr Reaper have already been decided;
(b) The Statement of Complaints includes new material which was not raised with the Health Services Commissioner and so the Tribunal has no power to consider that material;
(c) Some of the matters raised by Mr Reaper may not be considered by the Tribunal because they relate to action and decisions of QBE in its capacity as an authorised agent of WorkSafe. As, under the AC Act, the County Court has exclusive jurisdiction to inquire into, hear and determine matters arising under that Act, the Tribunal has no jurisdiction to deal with those matters; and
(d) In any event, even if the Tribunal had the power to deal with all of the matters raised by Mr Reaper, they are not capable of amounting to contraventions of the HR Act and the HPPs.
[18]
There has been an earlier decision of the Tribunal under the HR Act, HP19/2012 Reaper v QBE Workers Compensation[2012] VCAT 1514 (Reaper No 1). In that case, Mr Reaper complained about QBE disclosing his health information to a registered chiropractor in or around October 2011. The chiropractor was a clinical advisor and member of a Panel which was established by the Victorian Workcover Authority and the Transport Accident Commission. As explained by Senior Member McKenzie in her decision, the Panel provides an administrative mechanism for the review of the treatment of injured workers. It is not a statutory body. A clinical advisor's role is to review the treatment of injured workers receiving long-term treatment to determine whether the services provided are in line with a specific framework.
Senior Member McKenzie decided that the complaint had not been proved and it was dismissed. The following findings of fact were made:
(a) WorkSafe (formerly known as the Victorian WorkCover Authority or WorkCover or VWA) is responsible for administering the workers' compensation scheme established by the AC Act (paragraph 14);
(b) QBE is WorkSafe's agent (paragraph 14);
(c) WorkSafe's functions are set out in section 20(1) of the AC Act and include receiving, assessing and accepting or rejecting claims for compensation and also paying compensation to people entitled to it under the AC Act (paragraph 15);
(d) Mr Reaper made a claim under the AC Act on 14 July 2007 and signed the relevant claim form which comprised four pages (paragraph 24);
(e) The first page of the claim form tells the worker that the worker needs to 'sign the authority to release medical information and the worker declaration at the end of this form' and that the worker needs to 'read the statement on the back of this form that explains how your personal and health information will be collected and used' (paragraph 30);
(f) The last page of the claim form includes the following words:
[19]
In processing your claim, the Victorian WorkCover Authority (VWA) and any WorkCover Agent acting for the VWA in relation to your claim may collect personal and health information about you. The VWA and Agents are required by law to ensure that all people about whom they collect personal and health information are provided with the following information:
[20]
The VWA is a body corporate established under the [AC Act]. Agents are appointed by the VWA under that Act to act on its behalf in managing workers' compensation policies and claims for compensation.
[21]
Personal and health information about you is collected on this form and may also be collected during the processing, assessing and management of your claim. It may be collected from your current, previous and future employers, other government agencies, credit reporting agencies, health service providers and other persons who can provide information relevant to the claim.
[22]
Personal and health information about you also may be collected by solicitors, private investigators, loss adjusters and other service providers acting on behalf of the VWA or your employer's Agent.
[23]
Personal and health information collected about you is used for the purpose of processing, assessing and managing your claim and to verify any evidence you may submit in support of the claim. The information may also be used for one or more of the purposes listed in section 243 of the [AC Act], for the purposes of legal proceedings arising under that Act, to assist with your rehabilitation and return to work and to assist the VWA and WorkCover Agents to better manage claims generally.
[24]
For the purposes of processing, assessing and managing your claim, the VWA and your employer's Agent may disclose personal and health information about you to each other and to the following types of organisations:
[25]
Employees, contractors and agents of the VWA and the VWA's Agents. (paragraph 31)
[26]
(g) Mr Reaper's health information was collected in accordance with HPP 1.1 as part of WorkSafe's ongoing claims management functions and review processes (paragraph 33-34);
(h) The collection of Mr Reaper's health information was authorised by him when he signed the claim form (paragraph 33); and
(i) Mr Reaper's health information was disclosed and used for the primary purpose of collection, that is in the course of WorkSafe's claims management and review processes and its function to determine whether treatment continued to be appropriate (paragraph 34).
[27]
QBE says that the parties are bound by these findings of fact in this proceeding.
[28]
Mr Reaper says that QBE has misleadingly connected the 14 July 2007 claim form with a 'more recent aggravation claim form'.
The material before me indicates that Mr Reaper's workers' compensation claim is based on an injury said to have occurred on 4 May 2007 which led him to cease work on 18 May 2007. Mr Reaper was employed by Urban Domain Homes Pty Ltd, a company of which he is a director. He had signed a form both as employee and as representative of the employer. Further, Mr Reaper apparently suffered an earlier injury in 1993 which was the subject of a claim on WorkSafe.
At the hearing and in his written submissions, Mr Reaper said:
On 29 October 2007, QBE wrote to him stating that a decision had been made to terminate his claim for weekly payments and medical and like expenses effective from 29 November 2007. The claim referred to in the letter was said to have been made on 14 September 2007;
On 20 March 2008 a Medical Panel decided that injuries suffered on 4 May 2007 were not an aggravation of the 1993 injury. Thereafter QBE reverted to using 14 July 2007 as the accepted lodgement date of the injury claim form when in fact referring to a claim form lodged on 14 September 2007;
The QBE letter dated 29 October 2007 also referred to a claim received on 26 September 2007 regarding the aggravation of an underlying injury on 4 May 2007. That seems to be a reference to the 1993 injury;
He lodged a claim on line on 14 July 2007 but no response was ever received. That claim form was not signed because there was provision for that to be done for an on line form;
He re-sent the claim form on 14 September 2007 and that related to him aggravating the 1993 injury on 4 May 2007. He used the same claim form as had been sent earlier but this time he had completed the first page section which included a space to indicate if there had been an earlier claim. He filled out that box with a claim number. He says that this injury aggravation claim form signed on 14 September 2007 is unrelated to compensation issues following the Medical Panel decision in March 2008 because that Panel decided there was no aggravation of the earlier injury; and
As a result of the absence of a signed form on 14 July 2007 and the unrelated 14 September 2007 aggravation claim, there is no signed claim form which may be relied on by QBE for this matter. Mr Reaper appeared to agree that he authorised the collection of information in July or September 2007 as was discussed in Senior McKenzie's decision. I understand that Mr Reaper says that the decision in Reaper No 1 concerned the aggravation claim only and so that decision is not binding here because this matter concerns the original claim made on 14 July 2007.
At the hearing Mr Reaper seemed to move away from the contention that, in effect, there are three possible claims and seemed to say that, as there was no signed 14 July 2007 claim form which concerns the original injury, the decision in Reaper No 1 is not binding on me. He raised matters which cast doubt on the actual dates on which the form considered in Reaper No 1 was signed by him in his dual capacities.
[29]
The file in Reaper No 1 was available to the Tribunal. The copy of the claim form which was before Senior Member McKenzie is signed twice by Mr Reaper - in his capacity as employee of Urban Domain Homes Pty Ltd and as Director of the employee company. The part of the form which was required to be signed by the employee was dated 14 July 2007 and the part of the form required to be signed by the employer was dated 14 September 2009.
The claim form which was before Senior Member McKenzie carries a facsimile message header which indicates that the form was sent somewhere by QBE in Albury on 26 September 2007. That would appear to be the source of the date referred to in QBE's 29 October 2007 letter. The letter indicates that Mr Reaper was injured on 4 May 2007 and ceased work on 18 May 2007.
On Mr Reaper's analysis the 'claim' made on WorkSafe (and managed by QBE) since the 2008 decision of the Medical Panel, was made in July 2007 and concerns the new injuries he suffered rather than the aggravation of an earlier injury which was the subject of the September 2007 claim. He does not appear to take issue with the relevant event having happened on 4 May 2007 and him having stopped work on 18 May 2007.
In broad terms, I accept QBE's contention that I am bound by the earlier findings of Senior Member McKenzie so far as they relate to the functions of WorkSafe, the agency relationship between WorkSafe and QBE, the purpose for which QBE as agent for WorkSafe collected, used and disclosed health information, the content of the claim form signed by Mr Reaper and the consequent consent he had given.
Those submissions are consistent with the principle of issue estoppel which arises where a state of fact or law is alleged or denied in a proceeding and the particular matter has been decided by a prior judgment or order. That same matter cannot be raised later by the same parties.[4] This rule avoids the possibility of contradictory findings on the same question of fact or law.
It is clear that the issue before Senior Member McKenzie was whether Mr Reaper had given an authority for the collection and disclosure of health information on 14 July 2007 and whether that meant that his complaint about the use of his health information four years later ought to be dismissed. QBE relied on what was referred to as the 14 July 2007 form, that being the date Mr Reaper inserted as the date he signed as employee.
Where Mr Reaper claims that in fact he made two different claims in 2007, that the claim concerned an aggravation injury which he became aware of in September 2007 and that he did not give the appropriate authority for collection and disclosure of health information for the aggravation or some other claim, he had an opportunity to raise those matters before Senior Member McKenzie. It is not clear to me why that was not done.
The material presently before me indicates that there was only one claim. The injury being discussed occurred on 4 May 2007 and Mr Reaper stopped work on 18 May 2007. It seems he claimed that an earlier 1993 injury was aggravated and that claim was rejected by the Medical Panel. The 4 May 2007 injury has continued to be the subject of dispute between Mr Reaper and QBE. That was the injury with which the surveillance report was concerned.
Whenever Mr Reaper signed the claim form, in whatever capacity and whenever it was lodged (July or September 2007), it is apparent that he signed the claim form which was before Senior Member McKenzie. Senior Member McKenzie found that it had been signed and that the document comprised four pages which included the disclosure of matters relevant to the collection, use and disclosure of health information. That form was found to be relevant to the use and disclosure of health information some three years after the 2008 Medical Panel decision. On its face, I am bound by the findings made by Senior Member McKenzie about that document and how the HR Act applies to it. I am certainly bound by the findings about the role of WorkSafe, its functions and the agency relationship between WorkSafe and QBE.
However, the content of QBE's letter dated 29 October 2007 is somewhat confusing because it appears to refer to at least two different claims being made. It is not clear at present whether there is any basis for Mr Reaper's contention that he made two, or possibly three, claims to WorkSafe arising from the same injury and whether the form relied on in Reaper No 1 applied to each.
In the absence of evidence from the parties, I am unable to determine whether the relevant and operative claim form is that which was dated by Mr Reaper as 14 July 2007. If yes, I would be bound by the decision of Senior Member McKenzie, and Mr Reaper's complaints under HPPs 1.1, 1.5 and 2.2 about the collection, use and disclosure of health information between WorkSafe, QBE, MPOL Group and others would most likely have to be dismissed. If no, the decision in Reaper No 1 might have none or limited application here.
Having regard to the high bar set by section 75, I am unable to strike out or dismiss all complaints under HPPs 1.1, 1.5 and 2.2.
I will now turn to the matters raised by the AC Act.
QBE contends that the complaints referred to in paragraphs 26, 28 and 29 above (paragraphs 1.23, 1.43, 2.13 to 2.31 and Part 3 of the Statement of Complaints) raise questions about the actions and decisions of QBE in its capacity as an authorised agent of WorkSafe. It says further that the relief sought by Mr Reaper is mainly directed at changing adverse decisions made in relation to his AC Act claim.
Section 7(1) of the HR Act says:
[32]
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.
[33]
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 -
[34]
(a) any decision of the Authority, employer or a self-insurer; or
[35]
(b) any recommendation or direction of a conciliation officer.
[36]
Taking into account section 39 of the AC Act and relying on the decision in Victorian WorkCover Authority v Sharma[5], QBE says that no other court or tribunal has jurisdiction to inquire into, hear and determine any question or matter under the AC Act arising out of any decision of WorkSafe or, in this case, its agent QBE.
In reply, Mr Reaper says that the section 75 application should be summarily dismissed under section 78 of the VCAT Act because QBE is conducting the proceeding in a way that unnecessarily disadvantaged him. Mr Reaper says that section 39 of the AC Act does not apply to QBE, does not relate to his complaint, and does not prevent another person such as a senior officer of an agent, the Ombudsman, the Accident Compensation Conciliation Service, Victoria Police or the Tribunal from enquiring into, hearing or determining any decision or action made under the AC Act by an agent of WorkSafe.
Mr Reaper says that QBE has knowingly given false and misleading information to the Tribunal by submitting that section 39(1) of the AC Act applies here. He makes a similar complaint about the use of internal and other dispute resolution mechanisms.
These contentions appear to arise from an exchange of emails between staff of WorkSafe's 'Advisory Service' and Mr Reaper. In those emails Mr Reaper asked about 1992 and 1993 legislation which amended the AC Act and whether those Acts still apply. He also asked how section 39 related to those Acts. He also asked about the role of senior case managers, the Ombudsman, the Health Services Commissioner and alleged breaches of the HR Act. It is apparent from the content of the reply emails that the advisory service provides general information and does not provide legal advice. Mr Reaper did not set out the background to his questions and it is apparent that the responses were general in nature and the staff member's best attempt to answer the questions. While making no criticism of Mr Reaper for using the service, the email exchanges do not assist me in assessing QBE's contentions in respect of the effect of section 39(1) of the AC Act in this case.
[37]
The 1993 Act mentioned above did not repeal section 39(1). I am satisfied that section 39(1) of the AC Act was inserted into the AC Act by the abovementioned 1992 Act and that it was operative in 2007 when Mr Reaper's claim was made and continues to apply now.
I accept that, under WorkSafe's internal procedures and under the AC Act there are mechanisms for other persons to be involved in attempting to resolve workers' compensation claims. I accept that the Ombudsman has powers to consider complaints about Work Safe agents. I accept that the Magistrates' Court of Victoria also has some jurisdiction under section 43 of the AC Act. However, section 39(1) is not overridden by those matters and those grants of jurisdiction do not confer any powers on this Tribunal. It is clear from the words of the section and the decision in Sharma, that the County Court has exclusive jurisdiction to hear and determine questions or matters arising out of decisions of WorkSafe.
On reading the complaint to the Health Services Commissioner, the Statement of Complaints and the remedies sought, it is apparent that Mr Reaper's concerns primarily relate to decisions made about his workers' compensation claim and how that has been managed by QBE on behalf of WorkSafe. He seeks acceptance of his claim and reinstatement of various benefits under the AC Act.
While the vehicle by which Mr Reaper seeks reconsideration of the assessment of his injuries and claim is the HR Act, and the impact on decisions of the incorrect information contained in the surveillance report, it is still a question (or series of questions) which arise out of the decision of WorkSafe's agent. Those matters must be heard and determined by the County Court. There was nothing false or misleading or disadvantageous in QBE making these arguments.
The legal effect of section 39(1) of the AC Act and section 7(1) of the HR Act is that the Tribunal has no jurisdiction to consider any of the matters contained in Mr Reaper's particulars in paragraphs 1.23, 1.43, 2.13 to 2.31 and Part 3 of the Statement of Complaints. Those particulars are struck out.
Also struck out are any of the complaints made which refer to HPPs but rely on factual matters relating to the assessment or management of Mr Reaper's workers' compensation claims and the reliance or otherwise on the surveillance report in respect of those claims.
In particular, part of the complaints under HPP 4.1 and 6.7 are struck out.
HPP 4.1 creates an obligation on an organisation to take reasonable steps to protect the health information it holds from misuse and loss and from unauthorised access, modification or disclosure.
At paragraphs 1.22 and 1.23 of the Statement of Complaints, Mr Reaper says that QBE failed to take reasonable steps to protect the health information contained in the surveillance report before disclosing it to its independent medical examiners, QBE's lawyers, his own solicitor, his employer and the Accident Conciliation Service. He also says that QBE failed to protect the health information from misuse by its own staff. He repeats the allegation that the disclosure of the incorrect information in the surveillance report has corrupted every opinion and decision regarding his claim for the last 12 months.
HPP 6.7 creates an obligation on an organisation, in specified circumstances, to place incorrect information on a record that is not generally available and to which access is restricted and to take reasonable steps to ensure that only the corrected information is made generally available to anyone who may provide health services to the individual. The circumstances include where correction might cause harm to the individual, where the form of the health information makes correction impossible or where nature of the corrections are so complex or numerous that confusion would result.
At paragraphs 1.35 to 1.42 of the Statement of Complaints, Mr Reaper contends that the revised surveillance report is potentially misleading as it may have been grounded on the incorrect view of his compensable injury. He appears concerned that the way the surveillance report has been written may, despite being revised, influence opinions or decisions made regarding his claim.
In so far as these two complaints relate to matters or questions arising out of decisions of QBE in relation to Mr Reaper's claim under the AC Act, they must be heard and determined by the County Court. Those aspects of the complaints are struck out.
For the purposes of clarity, I draw Mr Reaper's attention to the fact that the remedies he seeks at paragraphs 4.4 to 4.16 of the Statement of Complaints cannot be granted by the Tribunal and will not be considered further.
I will now turn to Mr Reaper's other complaints.
[38]
As indicated earlier, Mr Reaper has alleged breaches of a large number of HPPs. In some cases he has outlined the manner in which he says they have been breached. In the case of others, such as HPP 4.5 and 6.6, it is not apparent from the Statement of Complaints on what basis it is alleged there have been breaches.
In the case of the HPP 1.5 and HPP 4.5 complaints there seems to be a question between the parties about whether the Google information is health or personal information and whether QBE is a health service provider.
QBE's response to the complaint under HPP 6.8 relies on evidence about its file without that evidence being before the Tribunal.
Taking into account the high bar set by section 75 and Mr Reaper's stated intention to clarify the complaints and provide evidence via witness statements, it would not be appropriate for all remaining complaints to be struck out or dismissed at this stage. I make this decision taking into account the fact that Mr Reaper is unrepresented in this matter but acknowledge that the way he has presented his case to date has made it difficult for QBE to understand and fully respond.
I propose to make orders allowing Mr Reaper to file further particulars of complaint. That document is to set out the complaints he makes under the HR Act which are unrelated to and entirely separate from the AC Act matters I have struck out. He may also file witness statements to supply the evidence he relies on in support.
The filing of amended particulars is not an opportunity to re-state matters which I have found arise under the AC Act and cannot be considered. Nor is it an opportunity to widen the case beyond the broad terms of the complaint made to the Health Services Commissioner.
The Tribunal's jurisdiction in relation to this complaint arises under section 74(1)(a) of the HR Act. Under that section, the Tribunal may hear a complaint referred to it by the Health Services Commissioner under section 51. Section 51 provides that, where the Commissioner declines to entertain a complaint, it must notify the complainant that he or she may require the Commissioner to refer the complaint to the Tribunal. As discussed earlier, that is what occurred here.
Relying on decisions which concern an equivalent in the former Equal Opportunity Act 1995 (Vic) (1995 EO Act),[6] QBE says that, where the Statement of Complaints makes allegations which were not in the original complaint made to the Health Services Commissioner, they cannot be raised here. That is so, even taking into account the general power of amendment contained in section 127 of the VCAT Act. I accept that proposition, however, I draw attention to another decision of the Tribunal which distinguishes between entirely new matters and further details about existing complaints.
In Youd-Homes v Milford Hall Pty Ltd & Anor[7], then Deputy President McKenzie refused an application to amend particulars of complaint. At paragraphs 8 and 9 of her reasons, she stated:
[39]
The power to amend documents given to VCAT must be read in the light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the [1995 EO Act]. The implication of the scheme of that Act on that power or 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.
[40]
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 [1995 EO Act] and all that is done is to add that pattern. (my emphasis)
[41]
It seems to me that the same approach ought to be taken here. Mr Reaper may explain the basis for the generalised complaints he made to the Health Services Commissioner or re-characterise them in terms of the HPPs. He may not raise any new matters.
[42]
In the event that Mr Reaper does not file and serve amended particulars and witness statements by the designated date, the complaint shall be regarded as withdrawn.
Assuming further material is filed by Mr Reaper, on receipt, QBE may file and serve amended particulars of defence and any witness statements.
I will make an order that the matter then proceed to a compulsory conference before me. I have noted that, from time to time, Mr Reaper has applied to the Tribunal to appear by telephone. Given the nature and purpose of a compulsory conference, it is necessary that he attend in person.