Australia: Refusal To Attend Medical Appointments

Last Updated: 24 December 2008
Article by Emma Crosby and James McIntyre

In Funk and Military Rehabilitation and Compensation Commission [2008] AATA 1044, the Administrative Appeals Tribunal (Tribunal) suspended rights to continue proceedings under section 57 of the SRC Act.


The Military Rehabilitation and Compensation Commission (Commission) had relied on the evidence of a compensation medical adviser, Dr A Casperson, and Dr David Spain, a consultant emergency physician in determining claims made by Mr Funk for allergic rhinitis, gout, cervical spondylosis and lumbar spondylosis. In the course of the Tribunal proceedings, the Commission sought to have Mr Funk medically examined in each of the claimed conditions, and arranged appointments with an ear, nose and throat (ENT) specialist, a rheumatologist and an orthopaedic surgeon.

It was originally arranged for Mr Funk to be examined by practitioners based in Brisbane, however Mr Funk's representative advised that he would be unable to attend the appointments as he was too unwell to travel between Brisbane and the Gold Coast. The Commission arranged three new appointments on the Gold Coast, with a new ENT surgeon and an orthopaedic surgeon. The examination with the rheumatologist, Dr Vecchio, was re-arranged to be held on the Gold Coast.

Mr Funk conditionally agreed to attend the appointments arranged with the ENT specialist and the orthopaedic surgeon, but not the one arranged with Dr Vecchio on the basis that he did not practice locally. When the Commission questioned Mr Funk's refusal to attend the appointment with Dr Vecchio, Mr Funk refused to attend any of the appointments arranged.

The Commission responded by serving notices pursuant to section 57 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) requiring Mr Funk to attend the appointments, and advising that if he refused or failed to attend, without reasonable excuse, his rights to compensation and to continue the proceedings before the Tribunal would be suspended.

Mr Funk failed to attend the appointment with Dr Vecchio. His representative then wrote to the Commission, suggesting that it and its solicitors had not acted in good faith in executing the notices, and that the notices were unlawful as Mr Funk had already attended an appointment with Dr Spain pursuant to section 57 of the SRC Act.

The matter was listed for a directions hearing to determine the issues.


The main issues at the hearing were whether the notices issued by the Commission under section 57 of the SRC Act were unlawful and, if so, whether Mr Funk had a reasonable excuse for refusing/failing to attend the medical appointments.


At the hearing, Mr Funk's representative submitted that the section 57 notices were unlawful on the following basis:

  • There had been a denial of natural justice and procedural fairness as Dr Casperson and Dr Spain had not been provided with all the relevant materials when they examined Mr Funk.
  • The Commission proposed to provide the reports of Dr Casperson and Dr Spain to the specialists.
  • The Commission could not rely upon section 57 of the SRC Act, which did not apply to the present claim because it had not been accepted and therefore section 124 of the SRC Act was not engaged.
  • The Commission could not rely on section 57 of the SRC Act, as it had already been invoked when Mr Funk had been examined by Dr Spain.

The Tribunal noted that there was no evidence that all relevant material had not been provided to Dr Casperson and Dr Spain. Even accepting that the material had not been provided, however, the Tribunal determined that it had no impact on the Commission's decision to serve the section 57 notices, or on the lawfulness of that decision.

For the same reason, the Tribunal also rejected Mr Funk's second contention in relation to the lawfulness of the section 57 notices.

As to the third contention, the Tribunal considered the argument to be misconceived, stating that it was not to the point that the Commission had rejected Mr Funk's claims, because he was seeking merits review of those decisions.

With regard to Mr Funk's final contention, the Tribunal found that there was nothing in the SRC Act to preclude the Commission from sending an applicant to multiple examinations, and that the express restriction in section 57(6) of the SRC Act on the frequency of examinations suggested quite the contrary.

On this basis, the Tribunal rejected the contention that the notices were unlawful.

Mr Funk then submitted that he had provided a reasonable excuse for not attending the medical appointments, as he had refused to attend on the basis that Commission had not provided the doctors with all of his relevant military records.

The Tribunal noted that Mr Funk had not relied on this excuse prior to the hearing and in fact had previously sought to exercise his right to refuse to attend the appointments unless the specialists were fully informed by both parties, were not fettered in the expression of professional medical opinions, were not permitted to express legal or personal opinions, and were free from apprehended or actual bias.

Whilst it was accepted that Mr Funk had a 'right' not to submit to the medical examinations, the price he would pay if he did so without reasonable excuse was to have his right to continue the proceedings suspended. The Tribunal also found that Mr Funk had no 'right' to require the Commission to agree to questions to be asked of doctors, or to dictate the manner in which the opinions of the doctors were expressed, what material was provided or who the Commission should engage to undertake the examinations.

Those matters (which the Tribunal considered went to the weight to be afforded to the doctor's medical opinions), which Mr Funk could raise at the hearing, did not provide a reasonable excuse for failure to attend the examinations. The Tribunal therefore determined that section 57 of the SRC Act would operate to suspend Mr Funk's rights to continue the proceedings until the examinations took place. The Tribunal directed that no further action be taken in the proceedings without the leave of the Tribunal.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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