Serco Australia Pty Ltd v Workers' Compensation Regulator
[2017] QIRC 114
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- Unreported Judgment
- Serco Australia Pty Ltd v Workers' Compensation Regulator[2017] QIRC 114
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Serco Australia Pty Ltd v Workers' Compensation Regulator[2017] QIRC 114
Serco Australia Pty Ltd v Workers' Compensation Regulator[2017] QIRC 114
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Serco Australia Pty Ltd v Workers' Compensation Regulator [2017] QIRC 114 |
PARTIES: | Serco Australia Pty Ltd (Applicant) v Workers' Compensation Regulator (Respondent) |
WC/2017/159 | |
PROCEEDING: | Application for an Order that the Worker submit to a personal examination by a registered medical specialist |
DELIVERED ON: HEARING DATES: | 21 December 2017 6 December 2017 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDER: |
|
CATCHWORDS: | WORKERS’ COMPENSATION - APPEAL AGAINST DECISION – INDEPENDENT MEDICAL EXAMINATION - Application for order for medical examination - whether the factors in s 556 are satisfied - whether an acceptable reason for the order has been established. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 s 556. |
APPEARANCES: | Ms D Callaghan, Counsel, instructed by McCullough Robertson on behalf of Serco Australia Pty Ltd; Mr P B O'Neill, Counsel, directly instructed, for the Workers’ Compensation Regulator. |
Decision
Introduction
- [1]Ms Sharon Barrass lodged an application for workers’ compensation with WorkCover on 10 May 2017 in respect to a right shoulder injury which she said was caused by an incident at work on 14 April 2017. Ms Barrass was employed by Serco Australia Pty Ltd as a Custodial Officer at the Southern Queensland Correctional Centre.
- [2]On 8 June 2017, WorkCover rejected Ms Barrass’ application on the basis that it was not satisfied that her employment was a significant contributing factor in the development of her shoulder condition. However, on review, the Workers’ Compensation Regulator (the regulator) review unit held that the injury was compensable.
- [3]Serco Australia Pty Ltd lodged an appeal against the regulator’s decision on 1 September 2017.
- [4]On 3 November 2017, Serco made an application pursuant to s 556 of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) that Ms Barrass be ordered by the Commission to submit to a personal medical examination.
- [5]The regulator opposes such an order being made.
- [6]The Commission heard the application on 6 December 2017.
- [7]It is not in dispute that Ms Barrass has sustained a right shoulder injury and that the determination to be made in the substantive hearing of Serco’s appeal is whether the injury satisfies the test of association with employment as prescribed by s 32(1) of the WCR Act.
Background
- [8]It is expected that in the substantive hearing a significant question to be answered will be whether CCTV footage of both the 14 April 2017 incident in which Mr Barrass claims to have sustained her shoulder injury, and also of work activities completed by Ms Barrass in the days following 14 April 2017, raises material doubts about whether the shoulder injury could have been caused by events at work on 14 April 2017.
- [9]The relevance and weight assigned in the decision making process to the CCTV footage is expected to be significantly informed by expert medical evidence adduced during the hearing of the appeal.
Legislation
- [10]Section 556 of the WCR Act provides:
556 Additional medical evidence
"(1) This section applies if -
- (a)The condition of a claimant or worker who has, or is, said to have, sustained an injury is relevant to the appeal; or
- (b)The cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.
- (2)The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal medical examination by 1 or more specified registered persons."
- (3)The appeal body may also, as the appeal body considers appropriate, make an order about—
- (a)the way, time and place of the examination; and
- (b)costs of the application for the order and of the examination.
- (4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.
- (5)Subsection (6) applies if the claimant or worker—
- (a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or
- (b)having attended, refuses to be examined by a registered person; or
- (c)obstructs, or attempts to obstruct, the examination.
- (6)Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination.
- [11]In so far as the current proceedings are concerned, s 556 of the WCR Act deals with the obtaining of additional medical evidence that is relevant to Serco’s appeal against the decision of the regulator dated 4 August 2017. Under s 556, the Commission may exercise a discretion to order a claimant or worker to submit to a personal medical examination.
- [12]While it is accepted that the condition prescribed in s 556 (1)(b) has been satisfied in the current proceedings, there is no agreement that the Commission should positively exercise its discretion and issue the Order sought by the applicant. This decision turns on a consideration of all the facts and circumstances relevant to the application and on the demonstration by the applicant of a reason or set of reasons that persuades the Commission that the proposed medical examination is warranted and relevant to the determination to be made in the substantive proceeding.
Independent Medical Examination
- [13]Serco’s application that Ms Barrass be directed to undertake an independent medical examination arises in circumstances where one physician (Dr O'Toole, an occupational and environmental physician) has reviewed the CCTV footage but has not conducted a physical examination of Ms Barrass, while another physician (Dr Melsom, an orthopaedic surgeon) had physically examined and treated Ms Barrass’ shoulder condition, but has not reviewed the CCTV footage. A third physician, (Dr Treffene, an orthopaedic surgeon), who had completed a surgical procedure on Ms Barrass’ right shoulder on 27 September 2017, had not viewed the CCTV footage.
- [14]It was the regulator’s submission that in circumstances where Ms Barrass’ right shoulder condition had already been treated by two orthopaedic surgeons, any further medical examination was unnecessary. The effect of the regulator’s position was that both Dr Melsom and Dr Treffene were “eminently qualified to provide further clinical opinion on the issue of causation” should Serco wish to provide new or additional information for their consideration. The proposition, as I understood it, was that if s 556(1)(b) of the WCR Act was enlivened, one or both surgeons could be asked to provide a report or additional report following a review of the CCTV footage, and invited to reconsider whether, on review of the new material, it was more probable than not that Ms Barrass’ injury was caused by her employment.
- [15]The regulator rejected any proposition that either Dr Melsom or Dr Treffene would be unable to provide a balanced and fair clinical opinion because of their prior involvement with Ms Barrass. There was no legitimate reason to suggest that they would not provide an honest clinical opinion in response to any new material provided or to any related questions put to them. It was a flawed proposition, in the view of the regulator, to suggest that treating surgeons giving expert evidence would give anything other than expert objective analysis.
- [16]However Serco contested this conclusion and suggested in effect that that both Dr Melsom and Dr Treffene would be placed in an invidious position if, having made clear pronouncements about causation, they were asked to reverse their positions.
- [17]Dr Melsom has been Ms Barrass’ treating surgeon over a period of time and had provided a definitive statement about causation which supported Ms Barrass’s position in reports to WorkCover on 12 July and 18 July 2017. In these circumstances, a doubt might endure about whether Dr Melsom could be expected to interpret what was disclosed by the CCTV footage in an entirely objective manner and be open to an alternative view about causation.
- [18]Further, the regulator’s review decision preferred and relied on Dr Melsom’s opinion in determining to override WorkCover’s decision to reject Ms Barrass’ claim. Dr Melsom had also engaged in some advocacy on behalf of Ms Barrass. He informed Ms Barrass’ general practitioner on 9 June 2017 (Attachment LS1 to Exhibit 2) that Ms Barrass should “challenge” WorkCover’s decision. Further, according to the regulator’s review unit decision dated 4 August 2017, Dr Melsom said in a report dated 20 June 2017 that in his opinion it would be “entirely reasonable” to have the WorkCover decision re-assessed.
- [19]While Dr Melsom was an advocate for Ms Barrass’ cause and a perception of partiality might be understood, the position in respect to Dr Treffene is less clear. On the surface Dr Treffene’s role was limited to the completion of the surgical procedure on Ms Barrass’s shoulder and there may not have been any need for him to have expressed a view about whether the shoulder condition was work-related. However, this does not appear to have been the case and on the submission of Ms Callaghan, Dr Treffene had recorded an opinion that the injury was work-related. While such an opinion did not find its way into the evidence, the evidence did include an email from Ms Shaw (Senior Appeals Officer, Workers Compensation Regulator) dated 13 October 2017 in which she states in effect that both Dr Melsom and Dr Treffene had opined that the injury was work-related (Attachment LS7 to Exhibit 2). In these circumstances I accept that it may not be unreasonable for Serco to apprehend the possibility that if Dr Treffene were asked to complete a report on causation, he could be influenced by his previously held position on the matter.
- [20]It was Serco’s submission that having provided a written opinion about causation, there may be reluctance on the part of an expert to move away from that opinion, even upon the presentation of new evidence. Further, this “reluctance is more likely when the doctor is a treating doctor who has previously advocated for his patient”.
- [21]Serco submitted that an independent medical examination was warranted in these circumstances, and in circumstances where the “overriding duty of an expert witness is to assist the Commission impartially on matters relevant to his or her area of expertise”, and where the “paramount duty of an expert witness is to the Commission, not to the party by whom he or she is retained”.
Decision
- [22]The order for an independent medical examination is sought because in the process of review associated with Ms Barrass’ workers’ compensation claim, a report about causation had never been obtained from an orthopaedic surgeon who had full possession of all the relevant facts and circumstances. That is, a report had not been provided by an orthopaedic surgeon who had conducted a physical examination of Ms Barrass, who had elicited a relevant history from Ms Barrass, and who had the benefit of reviewing the CCTV footage.
- [23]I accept that such a report would be relevant to the determination of the substantive hearing. I also accept that if such a report is not obtained, the appellant in the substantive proceedings may be disadvantaged. In the circumstances, the question to be answered in the current proceedings is whether any medical examination or further report could appropriately be provided by either Dr Melsom or Dr Treffene, or whether an examination and report should be completed by some other orthopaedic surgeon.
- [24]While I acknowledge the apparent practicality of requesting either Dr Melsom or Dr Treffene to compete supplementary reports, and that the likelihood that their involvement may obviate the need for Ms Barrass to undergo any further physical examination, I am sensitive to any perception that such directions would not be seen to be delivering a process which was independent. In particular, I accept the legitimacy of reservations expressed by Serco about the further involvement of Dr Melsom and Dr Treffene.
- [25]In the end result I have concluded that the applicant has established sufficient grounds to warrant grant of the application.
Order
- [26]The decision of the Commission is to issue an order requiring Ms Barrass to participate in an independent medical examination. The terms of the Order are attached to this decision.
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers’ Compensation and Rehabilitation Act 2003
Serco Australia Pty Ltd
AND
Workers’ Compensation Regulator
(Matter No. WC/2017/159)
APPLICATION FOR AN ORDER PURSUANT TO SECTION 556
ORDER
FURTHER to the hearing on 06 December 2017, IT IS ORDERED:–
- Pursuant to s 556 of Workers’ Compensation and Rehabilitation Act 2003, Ms Barrass is directed to undertake an independent medical examination to be conducted by one of the following orthopaedic surgeons:
- Dr Philip Duke;
- Dr Chris Blenkin; or
- Dr Brett Halliday.
- Ms Barrass must make an election about which orthopaedic surgeon she wishes to conduct the examination no later than 4.00 pm on Friday 5 January 2018. Serco Australia Pty Ltd and the Workers’ Compensation Regulator should be informed of the election by the specified time.
- Serco Australia Pty Ltd will make the appointment and provide reasonable notice to Ms Barrass of the date and time of the appointment.
- Ms Barrass must complete the independent medical examination no later than 28 February 2018.
- Ms Barrass must take copies of all x-rays, ultrasounds, MRIs and other radiological studies of her right shoulder and elbow, and all operation reports relating to surgery on her right shoulder to the examination for review by the attending orthopaedic surgeon.
- The costs of the medical examination, including Ms Barrass’ reasonable travel costs to and from the examination, must be paid for by Serco Australia Pty Ltd.
- The report of the orthopaedic surgeon is to be provided to the Regulator within two days of its receipt.
- The parties’ costs of this application be reserved to the Member hearing the Appeal.
Dated 21 December 2017.
G. D. BLACK
Industrial Commissioner