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The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education v Workers' Compensation Regulator; Ex parte Kim Jones QIRC 47
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education v Workers' Compensation Regulator; Ex parte Kim Jones  QIRC 047
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education
Workers' Compensation Regulator
Objection to Notice to Produce
9 April 2018
26 March 2018
Industrial Commissioner Knight
APPEAL AGAINST DECISION – Physical injury – muscle tension dysphonia – Psychiatric or psychological injury – Notice to Produce – Objection that documents sought are not relevant to issue on appeal – Objection that the notice lacks particulars of documents sought – Whether documents sought are confidential – Whether scope should be narrowed – concerns around confidentiality – The effect of production on applicant – Concerns around prior non-disclosure – Whether documents should be disclosed.
Workers' Compensation and Rehabilitation Act 2003 s 32
Industrial Relations Act 1999 ss 274, 320
Industrial Relations (Tribunals) Rules 2011 rr 64E, 64F, 64G
Mr P. Rashleigh, Counsel instructed by DWF for the Appellant.
Ms R. Drew of Holding Redlich, for the Applicant.
- The issue in the present proceeding is whether Dr Clare Collins should produce documents identified in an Attendance Notice in relation to a claim for workers' compensation made by Kim Jones.
- The notice relates to two separate appeals brought by Brisbane Catholic Education against two decisions of the Workers’ Compensation Regulator, which arise both from a physical and a psychological injury sustained during Kim Jones’ employment at Marymount Primary School.
Industrial Relations (Tribunals) Rules 2011 ("the Rules")
- Rule 64B provides that a party to a proceeding may require the production of documents "directly relevant to a matter in issue in the proceedings", while Rule 64C provides that a notice must "state the matter in issue in the proceedings about which the document sought is directly relevant". Rule 64E provides that objections to production may be made for reasons which include, but are not limited to:
- a)The lack of relevance to the proceeding of the documents mentioned in the notice;
- b)The lack of particularity with which the documents are described;
- c)The confidential nature of the documents or their contents; and
- d)The effect production would have on any person.
- Dr Collins was originally served with a Notice of Non-Party Disclosure dated 20 October 2017 for Ms Jones’ medical records relating to both a physical injury (muscle tension dysphonia) and a psychological injury.
- Ms Jones’ representatives objected to the scope of the notice and, on 13 November 2017, representatives for Brisbane Catholic Education subsequently agreed to limit the scope to the following:
"All material relevant to the Claimant’s muscle tension dysphonia and psychological injuries, including treatment notes, progress notes, correspondence, reports to and from other medical practitioners, results, scans, charts, nurses and doctor’s notes and any other records you hold."
- Representatives for Brisbane Catholic Education subsequently received a number of documents, but were not satisfied Dr Collins provided disclosure in accordance with the agreed scope of the original Non-Party Disclosure notice.
- An Attendance Notice to Produce in the following terms was subsequently served on Dr Collins and Ms Kim Jones on 14 February 2018:
"Entire file held by you relating to the Claimant, Mrs Kim Therese Jones (date of birth 5 April 1959) including, but not limited to, treatment notes, progress notes, clinical notes, correspondence, reports to and from other medical practitioners, results, scans, charts, nurses and doctors’ notes and any other records you hold."
- Ms Jones’ representatives are objecting to the production of the requested medical records pursuant to Rule 64E of the Rules, instead pressing for an order from the Commission that the notice be varied (and narrowed in scope), essentially directing Dr Collins to "provide all material relevant to muscle tension dysphonia and all psychological injuries".
- Rule 64F provides that service of an objection under rule 64E operates as a stay of the notice.
Submissions In Relation to the Objection
- Rule 64G provides that the Commission may make any order it considers appropriate, including, but not limited to:
- a)Lifting the stay;
- b)Varying the notice; or
- c)Setting aside the notice.
- At the hearing in relation to the objection, Ms Drew appeared on behalf of Ms Jones. Mr Rashleigh appeared on behalf of Brisbane Catholic Education. Affidavits and supporting materials were filed in the Industrial Registry prior to the hearing, where both parties subsequently made oral submissions. The Regulator did not appear.
Ms Jones’ Objection
- Correspondence within an affidavit filed in the Industrial Registry on 23 March 2018 characterised Ms Jones’ objection in the following terms:
"1. The documents requested lack relevance to the proceeding, including the relevance criteria under Rule 64E(4)(b);
2. The request lacks particularity to the extent that the documents requested are every document ever created, under Rule 64E(4)(c);
- The documents requested are confidential. They (sic) status as confidential and private information is protected by the Privacy Act. To the extent that your request asks for more documents than are required by litigation, your request is not appropriately balanced against our client’s right to privacy, under Rule 64E(4)(e);
- Our client is suffering an unnecessary level of distress that her employer, for whom she intends to have an ongoing employment relationship, is seeking to access every piece of medical information from her background, through an inappropriate means, under Rule 64E(4)(g)."
- In further oral submissions to the Commission during the hearing, Ms Jones’ representative noted the objection did not extend to the date of the material in circumstances where "there’s material predating the date of injury that is relevant." Instead, the objection was made on the basis that there ought to be a narrower categorisation of what is required to be disclosed by Dr Collins.
- Ms Jones’ representative also raised concerns Brisbane Catholic Education was essentially on a fishing expedition, which was in turn increasing the distress her client was already experiencing in circumstances where one of the two workers' compensation claims involved a psychological injury.
Brisbane Catholic Education Response
- In an affidavit filed in the Industrial Registry on 20 February 2018, Mr Jamie McPherson of DWF confirmed Dr Collins had previously been served with a Notice of Non-Party Disclosure dated 20 October 2017, of which Ms Jones’ representatives subsequently agreed to limit the scope to:
"All material relevant to the Claimant’s muscle tension dysphonia and psychological injuries including treatment notes, progress notes, correspondence, reports to and from other medical practitioners, results, scans, charts, nurses and doctors’ notes and any other records you hold."
- Mr McPherson confirmed he subsequently received documents from Dr Collins in response to the original Notice of Non-Party Disclosure relating to muscle tension dysphonia and psychological injuries, but was not satisfied with the materials that had been provided in circumstances where:
"1.6.1 The records provided by Dr Clare Collins are brief, and she has provided records that are similar to what (sic) which was previously disclosed to WorkCover. The first record of attendance provided by Dr Clare Collins is for 2015, though we note Dr Clare Collins has confirmed she first saw Mrs Jones in 2009.
1.6.2 Whilst Dr Clare Collins confirmed she provided all relevant information, on review of the WorkCover statutory file, I became aware that Mrs Jones attended the Meadows Medical Centre on 29 November 2016 and 28 February 2017 in relation to her injuries and that Dr Clare Collins did not provide the clinical notes relating to those attendances as part of her disclosure.
1.6.3 I was advised by Meadows Medical Centre that an appointment was scheduled with Ms Jones for the purpose of discussing the Notice of Non-Party Disclosure prior to Dr Clare Collins producing the requested material. Accordingly, I am concerned Dr Collins’ has relied upon the instruction of Mrs Jones in what to disclose as part of the Non-Party Disclosure."
- In those circumstances, Mr McPherson submitted that he did not consider Dr Collins capable of independently determining the relevance of the medical records related to Ms Jones’ injuries.
- On the day of the hearing, Mr Rashleigh, on behalf of Brisbane Catholic Education, submitted that, where questions had been raised as to whether proper disclosure had in fact taken place, the terms of Ms Drew's objection were irrelevant.
- He canvassed the background of the two appeals noting:
"…this was an injury that happened way back in 2003 and there was said to be an aggravation along the way up until I think about 2015. So we’re talking about notes about muscle tension dysphonia that go back to 2003 or I think Dr Clare Collins might’ve started seeing the worker in 2009. So the first document we get in respect of the muscle dysphonia is November 2015."
"Now, it beggars belief that there’s nothing before … November 2015 in respect of the muscle dysphonia."
- In response to Ms Drew’s arguments regarding relevance, Mr Rashleigh noted the complexity of the two appeals, highlighting the onset of Ms Jones’ muscle dysphonia "initially in 2003 and then through to November 2015." He noted that the history of the injury also bears upon the "issue of the psychiatric condition and management action in respect of what was done with respect to those matters that were said to be put in place to help the worker through."
- In that context, Mr Rashleigh sought an order from the Commission that the stay placed on the Notice to Produce (by virtue of Ms Jones’ objection) be lifted. Further, that Dr Collins be directed to provide Ms Jones’ entire file containing all medical records and other related materials to the Commission, so that a determination can be made by an independent party as to what disclosure is appropriate.
Scope of Appeal(s)
- In order to consider the arguments in relation to relevance raised by both parties, it is necessary to consider the scope of the appeal(s).
- The parameters of both Appeals are set out in two separate statements of facts and contentions, which were filed on 7 February 2018.
- Brisbane Catholic Education contends Ms Jones’ employment is not a significant contributing factor to her muscle tension dysphonia as her injury is a manifestation of an original injury for which she has already been compensated with a lump sum payment.
- Brisbane Catholic Education's position is that Ms Jones has already been compensated for the prior injury in that she was previously assessed as suffering a 15% permanent impairment due to the muscle tension dysphonia, and accepted a lump sum payment of $42,673.00. The permanent impairment lump sum is designed to compensate Ms Jones for the types of flare-ups which may occur over her working life.
- Given the muscle tension dysphonia is constitutional in nature, the Appellant contends that Ms Jones’ employment is merely the setting in which her muscle tension dysphonia has occurred and is not a significant contributing factor.
- It is contended by Brisbane Catholic Education that Ms Jones’ psychological injury arose out of her employment as a teacher. Identified as having contributed to the injury was her muscle tension dysphonia (to a lesser extent) and, most significantly, her being informed that alterations to her work could not be accommodated.
- Brisbane Catholic Education's position is that the major significant factor to the development of Ms Jones’ injury was her being informed by her employer on 3 January 2017 that Marymount Primary School was unable to offer her a role that would reasonably accommodate the restrictions outlined by her treating general practitioner, Dr Collins. As such, it argues the decision not to accede to a request for alterations relevantly falls within management action.
- In circumstances where Brisbane Catholic Education maintains that the action taken by management, in response to those circumstances and subsequent developments, was reasonable and undertaken in a reasonable way, it argues Ms Jones’ injury is excluded from the definition of injury by virtue of section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
- At this stage of the proceedings, the Regulator is yet to file a statement of facts and contentions for either matter.
The Commission's powers
- Rule 64G provides that the Commission may make any order it considers appropriate including, but not limited to, an order:
- (a)Lifting the stay; or
- (b)Varying the notice; or
- (c)Setting aside the notice.
Consideration and conclusion
- I have set out the oral submissions made by Ms Drew and Mr Rashleigh. In addition to examining the grounds of Ms Jones’ objection, one of the other critical issues for consideration, in my view, is whether the stay should be lifted given the concerns raised by Brisbane Catholic Education over non-disclosure by Dr Collins.
- Ms Drew’s submissions in respect of relevance were relatively brief. Essentially, she argued that a requirement for Ms Collins to provide Ms Jones’ 'entire' medical record was unreasonable as the relevant injuries, which are the subject of the appeal, are limited to Ms Jones’ physical injury (muscle tension dysphonia) and a psychological injury.
- Ms Drew submitted that Ms Jones’ medical file contained records about personal medical issues that extended well beyond the two injuries. In this context, Ms Drew also raised concerns in respect of the confidential nature of the files, along with the potential distress Ms Jones’ would experience in the event that such material was handed over to the Workers' Compensation Regulator and legal representatives for Brisbane Catholic Education.
- Although Mr Rashleigh highlighted the complexity of the appeal(s), noting the extensive history of Ms Jones’ muscle tension dysphonia and the relevance of the medical records in this regard, he submitted that the arguments of Ms Drew in support of Ms Jones’ objection were essentially irrelevant. There was, he contended, a serious question as to the non-disclosure of documents by Dr Collins.
- Having considered the affidavit of Mr McPherson, the history of the matter, as well as the oral submissions and other materials provided to the Commission by both parties (including the prior Notice of Non-Party Disclosure served on Dr Collins), I can understand Mr Rashleigh’s concerns in relation to non-disclosure.
- Ms Drew argued that Brisbane Catholic Education was essentially on a ‘fishing trip’. Ordinarily, had the notice that is the subject of these proceedings been the first and only notice served on Dr Collins, I would have agreed with her position and most likely narrowed the scope accordingly. However, the difficulty I have with Ms Drew’s submissions is that prior to the notice (which is the subject of these proceedings) being served on Dr Collins, Brisbane Catholic Education had already agreed to narrow the scope of the notice and limit it to medical records relating to the two relevant injuries and nothing more.
- Mr McPherson was provided with a number of the documents in Ms Jones’ file by Dr Collins, but a subsequent cross-reference to other WorkCover materials and information already in his possession suggested that not all relevant materials on Ms Jones’ medical file have been disclosed in accordance with the notice. On the day of the hearing, Ms Drew was not able to provide the Commission with a reasonable explanation as to how or why this situation might have arisen. In this context, I do not think it is correct to characterise the subsequent Notice to Produce served on Dr Collins as a 'fishing expedition'.
- In circumstances where it appears the scope of the agreed notice has not been complied with, I have some sympathy for Mr Rashleigh’s concerns as to Dr Collins' ability to independently determine the relevance of materials within Ms Jones’ medical file, and, by extension, the potential impact this may have on Brisbane Catholic Education’s capacity to effectively run its appeal(s).
- On balance, I am not satisfied that the potential strain on Ms Jones that could arise should her full medical record be accessed by the legal representatives of Brisbane Catholic Education outweighs the importance of a non-party, such as Dr Collins, properly complying with a notice to disclose medical records. Nor am I persuaded by the arguments raised in support of her objections in relation to relevance, confidentiality, lack of particularity and privacy.
- Having considered the affidavit of Mr McPherson, I can appreciate the lack of confidence Brisbane Catholic Education now has in Dr Collin’s ability to effectively and independently identify the relevant medical records.
- Mr Rashleigh proposed that Doctor Collins provide the entire clinical file to the Commission such that a determination could be made as to what disclosure is appropriate. However, in this matter, I do not think that this is necessary. My view is that Dr Collins should simply comply with the Notice to Produce as filed.
- Having considered Ms Jones’ entire medical record and all related materials, I encourage both parties to the Appeal to treat Ms Jones’ medical records sensitively, tendering only those records that are relevant and essential, and returning the original medical file and related materials to Dr Collins at an appropriate time.
- The stay on the Notice to Produce served on Dr Clare Collins and Ms Kim Jones on 14 February 2018 is lifted.
- Dr Claire Collins is to comply with the Notice to Produce as filed, no later than 5.00pm, Monday 16 April 2018.
- Published Case Name:
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education v Workers' Compensation Regulator; Ex parte Kim Jones
- Shortened Case Name:
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education v Workers' Compensation Regulator; Ex parte Kim Jones
 QIRC 47
09 Apr 2018