Whether Arbitrator erred in law in making orders to produce medical information

Blakers v South Metropolitan Health Service [2023] WADC 143

Background

Ms Blakers (the appellant) lodged an application for arbitration, seeking payment of weekly compensation and other statutory expenses pursuant to the Workers’ Compensation Injury Management Act 1981 (WA) (WCIMA) for an alleged workplace bullying and psychological injury sustained in the course of her employment (Application).

The employer contended Ms Blakers did not suffer a psychological injury during the course of her employment, or at all. In the alternative, if she did suffer this injury, which was disputed, the Employer contended that her employment was not a contributing factor and did not contribute to a significant degree to the contraction or aggravation of a disease. The employer further contended that Ms Blakers’ injury (if any) was specifically excluded by WCIMA s 5(4) on the basis that any disease caused by stress wholly or predominantly arose from discipline or an expectation of discipline.

Arbitration

The Arbitrator granted a request by the employer for the issue of three orders to produce (Production Orders). Two orders required the production of a complete copy of Ms Blaker’s medical records from different practices, and one was to Services Australia for a Medicare claims history statement.

Relevant Law

WCIMA s 193 sets out the power to make an order to produce.

The power in WCIMA s 193 is to be exercised in accordance with Workers’ Compensation and Injury Management Arbitration Rules 2011 (WA) (WCIMAR) r 50. It provides:

• An arbitrator must not exercise powers under rule 47 or section 193 unless the arbitrator is satisfied that the order is necessary for the fair, just, economical, informal and quick resolution of a dispute.

In exercising powers under section 193 the arbitrator may consider whether the document, material or information sought is relevant to an issue in dispute (r 50 (2)(a)).

Appeal to the District Court

Interpretation

Ms Blakers submitted the Arbitrator erred in law in not correctly interpreting s 193 of the WCIMA in that he made a Production Order with respect to the sensitive, private and confidential medical records of the Appellant that were not ‘relevant’ to an issue in dispute.

The central issue in dispute was the meaning of the word ‘relevant’.

The District Court at [29] considered the test is whether “…there is a reasonable possibility that the document, material or information sought will materially assist the application or the defence of the application, or is otherwise relevant to an issue in the application, including for the purpose of cross-examination, and including where what is sought may lead to a train of inquiry which is relevant to the issues in dispute”.

On this basis the Court was not persuaded that the Arbitrator erred in the interpretation of WCIMA s 193 or WCIMAR r 50.

Exercise of Discretion 

The Court considered Ms Blakers could potentially assert that the Arbitrator erred in the exercise of the discretion in WCIMA s 193. The appeal was determined by reference to the principle that error may be inferred if the decision ‘was so unreasonable that no reasonable judicial officer could have made it’.[1]

The Court was satisfied that the Decision to order the production of documents was reasonably open to the Arbitrator.[2] The reasons for the finding is summarised as follows:

• The documents sought were ‘relevant’ to an issue in dispute;
• There was at least a reasonable possibility that the documents sought in the Production Orders would materially assist the Employer in its defence of the Application;
• The material could give rise to a line of enquiry which is relevant to the issues before the Arbitrator, including other potential causes of the psychological symptoms being experienced by the appellant; and
• The material was relevant to testing whether the medical history provided by the appellant was accurate and complete.

The District Court affirmed the decision of the Arbitrator.

The appeal was dismissed.

Implications

If the issues in dispute in an application include the contention that the worker’s injury was related to non-work matters or issues, as if often the case, and there is a clear basis in the materials disclosed in the arbitration for that contention, such as a report from an Independent Medical Examiner, production orders can be sought by reason of it being necessary to give the Employer a ‘fair’ opportunity to defend the application.

[1] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [35] (Reasons of the Court).

[2] Snook [35].