Teys Australia Meat Group Pty Ltd v Flett
[2015] QDC 177
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- Unreported Judgment
- Teys Australia Meat Group Pty Ltd v Flett[2015] QDC 177
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Teys Australia Meat Group Pty Ltd v Flett[2015] QDC 177
Teys Australia Meat Group Pty Ltd v Flett[2015] QDC 177
DISTRICT COURT OF QUEENSLAND
CITATION: | Teys Australia Meat Group Pty Ltd v Flett [2015] QDC 177 |
PARTIES: | Teys Australia Meat Group Pty Ltd (applicant) v Douglas John Flett |
FILE NO/S: | 2267/15 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 23 June 2015 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 June 2015 |
JUDGE: | Rackemann DCJ |
ORDER: | The application is dismissed |
COUNSEL: | SP Gray for the applicant |
SOLICITORS: | BT Lawyers for the applicant |
- [1]HIS HONOUR: This is an application for an order, pursuant to section 282 of the Workers’ Compensation and Rehabilitation Act 2003, that the respondent submit to examination by one of a panel of three spinal surgeons. Section 282 provides relevantly as follows:
282 Worker to undergo medical examination
- (1)An insurer or a contributor may at any time ask the worker to undergo either or both of the following, whether at one time or at different times, at the expense of the insurer or contributor:
- a medical examination by a doctor to be selected by the worker from a panel of at least three doctors nominated in the request
...
- (2)The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious.
...
- [2]Pursuant to section 287 of the Act, the court has power to enforce compliance.
- [3]In this case, the insurer has made a request of the worker to undergo a medical examination by a doctor to be selected by the worker from a panel of three spinal surgeons, but the worker has refused. The ground for the refusal is that it would be unreasonable or unnecessarily repetitious to undergo such an examination. The issue in this proceeding is whether the request would, indeed, be unreasonable or unnecessarily repetitious.
- [4]The principles to be considered in such an application were discussed by Cullinane J in Woolworths (Qld) Pty Ltd v Berry-Porter [2002] QSC 360, to which each side referred me. In that case, it was made clear that the commencement of a common law claim does not carry with it the right of an insurer to have the claimant go through a new round of needless and repetitious medical investigations, at least where there has been no material change in the condition and there is an absence of other factors in the individual case which makes further examination appropriate. As his Honour observed, at paragraph 22:
I do not think that the legislation should be construed as intending to confer a right to a multiplicity of specialist witnesses or the right to choose the most favourable witness from a number of specialists who have independently examined a claimant…
- [5]And, further, at paragraph 27:
As I have said I do not accept that the applicant has an unqualified right to a further examination by a psychiatrist and by an orthopaedic specialist and that earlier examinations are irrelevant to that question. In the absence of any acceptable reason why the applicant should now seek to have examinations by other specialists and given the respondent’s readiness to be re-examined by the specialists the applicant chose to have the respondent examined by previously, I am of the view that the examinations sought would not be reasonable and would do no more than provide the applicant with an opportunity to call a multiplicity of specialist witnesses, or to confer upon it a choice to call the most favourable of the specialist witnesses who would have examined the respondent.
- [6]Counsel for the applicant expressly accepts that “a multiplicity of examinations or attempt to secure a more favourable report is inappropriate, but submits that the current request does not fall within that category. In order to assess whether the request is unreasonable or unnecessarily repetitious, it is therefore relevant to look at the examinations which have already occurred.
- [7]The respondent sustained an injury in an event that occurred on the 17th of September 2013 whilst he was employed by the applicant, a self-insurer in accordance with the provisions of the Act. The respondent successfully applied for compensation for the injury. In managing that claim the applicant sought opinions from specialist medical practitioners. In that regard, Mr Flett was referred to Dr Richard Kahler, a neurosurgeon, who recommended that Mr Flett be referred to an appropriate spinal surgeon. Mr Flett was then referred to Dr Bill Ryan, an orthopaedic surgeon, who thought there was an indication for surgery, but noted that Mr Flett was keen to avoid surgery if possible. Mr Flett was then referred to Dr Peter Winstanley, also an orthopaedic surgeon, who provided a report dated the 14th of May 2014.
- [8]Dr Winstanley observed that Mr Flett presented with symptomatology associated with his lumbar spine and right leg and that his injury would be consistent with a disc protrusion causing S1 nerve impingement. He noted that Mr Flett had ongoing symptomatology. He opined that if Mr Flett does not wish to proceed with surgical intervention, his lumbar spine and his condition will be stable and stationary. Not unreasonably, the applicant wishes to investigate whether, if Mr Flett had surgery, his condition would be improved and to what extent. It is for that reason that it says that it is reasonable and not repetitious, to ask him to submit to an examination by a spinal surgeon.
- [9]The position of Mr Flett is that Dr Winstanley can easily be asked to provide that opinion and that it is both unreasonable and unnecessarily repetitious to ask him to be examined by yet another orthopaedic surgeon, albeit one who is a practicing spinal surgeon. The response from the applicant is to the effect that Dr Winstanley is not someone who continues to perform spinal surgery. It is accepted that Dr Winstanley no longer performs the actual surgery, but it does not follow that he is not qualified to advise on surgery or to express opinions about the reasonableness of a surgical option or what its likely effects would be. Indeed, this is a matter which has been investigated, not by the applicant’s solicitors, but by the respondent’s solicitors. On the 16th of June 2015 a solicitor for Mr Flett spoke to Dr Winstanley, who advised as follows:
- (a)He became an orthopaedic surgeon in 1986 and performed spinal surgery for approximately 19 years thereafter.
- (b)He continues to see patients who have suffered spinal injuries, including patients who have undergone surgical treatment for the spinal injury and are undergoing rehabilitation.
- (c)Based on the above, he can provide medico-legal opinion on spinal injuries, including opinion on the prognosis for those injuries if surgical treatment were undertaken.
- [10]That evidence has not been challenged, nor has there been any evidence obtained as to the respects in which any of the doctors on the list submitted would be in a better position than Dr Winstanley to advise as to the options for surgical treatment and the likely prognosis for injuries if surgical treatment were undertaken. As I have already observed, it does not follow that there is any relevant deficit in Dr Winstanley’s expertise in these regards simply because he does not presently perform the actual surgery.
- [11]It seems to me that, in the absence of any affidavit material which establishes that there is any specific additional expertise that those doctors on the list put forward by the applicant have which is lacking on the part of Dr Winstanley in relation to the ability to give evidence on that particular issue, the request is, in the circumstances, unreasonable or unnecessarily repetitious. The application is dismissed.
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