But I don’t want to go – a subjective conviction that a summons to a medical examination is illegal cannot constitute a reasonable excuse – Emploi et RH

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Hanel and Comcare [2022] AATA 261.

Key points:

  • A subjective belief alone as to the illegality of a notice to submit to a medical examination cannot constitute a reasonable excuse for the purposes of section 57(2) of the CBC Act.

  • A decision made under section 57 of the CBC Act is not included in the listed sections that may be reviewed by the Tribunal.

Context:

Mr. Hanel filed two applications with the Workers’ Compensation Administrative Appeal Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (the CBC Act). The first application, filed on September 4, 2020, related to a claim under section 14 of the RSC Act for a psychological disorder. The second claim filed on February 19, 2021 was for medical treatment costs under section 16 of the SRC Act.

Prior to submitting his applications, the applicant underwent an independent medical examination (IME) with Dr. Martyn Ewer, psychiatrist, on March 12, 2020.

On December 22, 2020, Comcare notified Mr. Hanel that an appointment had been made for a repeat NDE with Dr. Ewer. Mr. Hanel did not show up for the scheduled appointment, as well as two other scheduled appointments. Notices under section 57(1)(b) of the CBC Act, with details of the review, were sent to Mr. Hanel for each appointment.

Mr. Hanel advised Comcare that he did not believe another IME was necessary and he challenged Comcare’s authority to issue the Section 57(1) notices, as the matter was before the tribunal.

On July 21, 2021, Comcare issued a notice suspending Plaintiff’s claims for compensation under Section 57(2) of the SRC Act, for failing to attend the IME.

The Tribunal had to consider:

  1. the validity of notices advising of IMEs, and

  2. whether Mr. Hanel’s rights to continue the proceedings before the Tribunal have been suspended pursuant to section 57(2) of the RSC Act.

The law:

Section 57 of the SRC Act provides that:

  1. Or:

(a) notice has been given to a competent authority under section 53 in respect of an employee; Where

(b) an employee has made a claim for compensation under section 54;

the competent authority may require the employee to submit to an examination by a duly qualified medical practitioner appointed by the competent authority.

  1. Where an employee refuses or fails, without reasonable excuse, to submit to an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to sue or to pursue any proceedings under this Act for compensation, are suspended until the review takes place.

Conclusion:

Mr. Hanel argued that the Notices of Suspension under Section 57(1) and Section 57(2) were invalid.

The Court found that nothing prevented Comcare from asking Mr. Hanel to attend an IME at a time when the proceedings were before the Court and noted that there may be good reasons for this to happen, including where there has been a change in medical condition, whether the employee has ceased to be unable to work because of that medical condition, whether the condition has worsened or whether, in view of Other evidence, a question may arise as to whether employment was the cause of the condition.

The Tribunal found that Mr. Hanel’s assertion that he was not sufficiently informed of the reason for IME’s request was without merit, particularly in view of the communication between himself and Comcare at during the period in which three valid notices pursuant to Article 57(1) notices of the EMI were sent to him.

The Tribunal accepted Comcare’s contention that Mr. Hanel’s subjective belief alone as to the illegality of a notice to undergo an IME cannot constitute a reasonable excuse for the purposes of Section 57(2) of the CBC Act. It was also noted that whether or not Mr. Hanel had a reasonable excuse was a matter for substantive consideration which was beyond the jurisdiction of the Tribunal.

The Tribunal ultimately determined that the Section 57(1) notice dated April 6, 2021 directing him to attend an IME on Thursday, May 6, 2021 was a valid and lawful notice. Mr. Hanel failed to attend the medical appointment and therefore the issuance of the Section 57(2) Notice of Suspension was properly within the discretion of Comcare and was validly and legally made. Accordingly, the Tribunal determined that Mr. Hanel’s rights to continue the proceedings before the Tribunal were suspended pursuant to section 57(2) of the RSC Act.

Lessons learned:

A subjective belief alone as to the illegality of a notice to undergo an IME cannot constitute a reasonable excuse for the purposes of section 57(2) of the CBC Act.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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