Woolworths (Qld) Pty Ltd v Berry-Porter
[2002] QSC 360
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- Woolworths (Qld) Pty Ltd v Berry-Porter[2002] QSC 360
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Woolworths (Qld) Pty Ltd v Berry-Porter[2002] QSC 360
Woolworths (Qld) Pty Ltd v Berry-Porter[2002] QSC 360
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
DIVISION: | Trial |
PROCEEDING: | Application for medical examination |
ORIGINATING COURT: | Supreme Court at Townsville |
DELIVERED ON: | 30 October 2002 |
DELIVERED AT: | Townsville |
HEARING DATE: | 28 October 2002 |
JUDGES: | Cullinane J |
ORDER: | Application dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – where respondent obtained medical reports during the time in which the compensation claim was being processed – where respondent elects to claim damages under WorkCover Queensland Act 1996 – where applicant nominated panel of specialists to independently examine the respondent – where applicant asks respondent to choose a specialists from each panel to examine respondent on behalf of the applicant – whether applicant has an unqualified right to an examination of the respondent by specialists unaffected by previous medical examinations |
COUNSEL: | W Elliott for the applicant P de Plater for the respondent |
SOLICITORS: | Boulton, Cleary and Kern for the applicant Turner Freeman for the respondent |
[1] The Applicant, a self insurer under the WorkCover Queensland Act 1996 as amended, seeks an order that the Applicant be ordered to undergo an independent medical examination on behalf of the Applicant by both an orthopaedic specialist and a psychiatrist.
[2] The Respondent, then an employee of the Applicant injured her right ankle on the 4th February 2000.
[3] She made application for workers’ compensation payments. She received compensation and an assessment was made under s 203 of the WorkCover Queensland Act of permanent impairment.
[4] The Applicant has obtained a number of medical reports during the time that the claim for compensation was being processed and up until the time that the assessment of permanent disability was made.
[5] These include reports from Dr Mansfield who was the Respondent’s treating orthopaedic surgeon and Dr Blue who examined the Respondent at the request of the Applicant pursuant, I have been told, to s 162 of the Act.
[6] The Respondent also obtained a report from Dr O'Hare, a psychiatrist who had treated the Respondent and also from Dr Likely, a psychiatrist based in Townsville and who examined the Respondent at the Applicant’s request.
[7] The Respondent has been also referred to a general medical assessment tribunal for an assessment of her psychiatric condition and an assessment that she has a permanent psychiatric condition, ascribable to her injuries was made on the 14th December 2001.
[8] The Respondent has elected to claim damages and in April 2002 solicitors who had been appointed to act on behalf of the Applicant wrote to the solicitors for the Respondent nominating a panel of orthopaedic specialists (three) and a panel of psychiatrists (four). The Applicant asked the Respondent to choose a specialist from each of the panels to independently examine her on behalf of the Applicant.
[9] It should be mentioned that the Respondent had obtained an independent examination from Dr Graham, an orthopaedic surgeon and has recently obtained a report from Dr Morgan, who is also an orthopaedic surgeon.
[10] The specialists making up each of the panels to which I have just referred do not include any of the specialists who have already examined the Respondent. The Respondent refuses to undergo independent medical examinations from any of the specialists nominated but has indicated a readiness to be examined, either by Dr Mansfield or Dr O'Hare. In a letter of the 5th June 2002, the Respondent also indicated a preparedness to be re-examined by Dr Blue and Dr Likely. These are of course the specialists who examined the Respondent on behalf of the Applicant for the purposes of the Workers’ Compensation claim.
[11] There was some delay between the time that the dispute arose and the institution of these proceedings. I do not regard the delay itself however as being such as to defeat the application. Nonetheless some significant part of the time within which the parties must make an attempt to settle the matter has now expired.
[12] Section 286 of the Act provides as follows:
“286 Worker to undergo medical examination
(1) WorkCover may, at any time, ask the worker to undergo, at WorkCover’s expense-
(a) a medical examination by a doctor to be selected by the worker from a panel of at least 3 doctors nominated in the request; or
(b) an assessment of cognitive, functional or vocational capacity by a registered person to be selected by the worker from a panel of at leat 3 persons with appropriate qualifications and experience nominated in the request.
(2) The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious.
(3) If 3 doctors or persons with appropriate qualifications and experience are not available for inclusion on a panel, the number on the panel may be reduced to 2.”
[13] Examinations which have taken place for the purposes of the claim for compensation and the permanent assessment are governed by s 162 which provides as follows:
“Examination by registered person
(1) WorkCover may at any time require a claimant or a worker to submit to a personal examination by a registered person at a place reasonably convenient for the claimant or worker.
(2) Subsection (3) applies if the claimant or worker –
(a) fails, without reasonable excuse, to attend for the examination at the time and place advised by WorkCover; or
(b) having attended, refuses to be examined by the registered person; or
(c) obstructs or attempts to obstruct, the examination.
(3) Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination.
[14] It was made clear on behalf of the Applicant that it maintains an entitlement to have medical examinations for the purposes of the Respondent’s claim for damages and that this entitlement is not in any way affected by any examinations which might have taken place in the course of the claim for workers’ compensation. Section 206 appears in Part 5 of Chapter 5 of the Act. Part 5 is concerned with pre-court procedures.
[15] Section 286 must be taken as providing the statutory principles which reconcile the two fundamental and competing rights which Scarman LJ referred to in Starr v National Coal Board (1977) 1 All ER 243 at 249.
[16] The Applicant will be entitled to a medical examination unless it would be unreasonable or unnecessarily repetitious to require the Respondent to undergo such an examination.
[17] Before me, attention was drawn to the different issues which arise upon a claim for compensation and an action for damages. There was also evidence before me which suggested that the Applicant has two separate sections within its establishment which deal with claims for compensation on the one hand and claims for damages on the other.
[18] Reference was also made to the requirement in s 162(1) that the examination be held at a place “reasonably convenient for the claimant or worker”, something which it was suggested placed a limitation upon the Applicant’s rights when a claim for compensation is being processed.
[19] Finally it was submitted that the claim having been referred by the Applicant to its solicitors, those solicitors were entitled to exercise an independent judgment in the choice of specialists who might carry out the examination with a view to their being called as witnesses.
[20] The proposition that an Applicant in the position of this Applicant can treat to the start of the proceedings for damages as the justification for a new round of medical investigations was one which MacKenzie J in Muller v Nebo Shire Council (2002) QSC 084 was disinclined to accept. He said at paragraphs 11 and 12:
“There is no suggestion in the material before me that any of those medical practitioners is unavailable to give evidence. One of the foci of the disagreement between the parties is whether Dr Martin had examined the plaintiff in connection with the WorkCover claim or the common law claim. It seems implicit in this exchange that the def claims a right to treat the start of a proceeding for damages as the justification for a new round of medical investigations.
Given the obligations is s 293(8) to attempt to settle the claim, and the obligations in s 293A(6) to have obtained and exchanged reports of all expert witnesses to be relied upon, and the obligation to make a final offer at the conference which offer governs the costs order which may be ultimately made, it is unlikely that it was intended that the Defendant’s distinction be sustainable under the present statutory regime, at least in a case where there has been no material change in the plaintiff’s condition or there is an absence of other facts in the individual case which make further examinations appropriate.”
[21] It cannot in my view be the case that the Applicant has an unqualified right to an examination of the Respondent by an orthopaedic specialist and by a psychiatrist, unaffected by what has gone before in the way of medical examinations.
[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. If this is the only benefit that can be identified from an examination in my view it would be unreasonable or unnecessarily repetitious to order it.
[23] Whilst as I have said the Applicant suggested that the examinations carried out for the purposes of the workers’ compensation claim were directed towards different and more limited issues than would be the case without an examination for the purposes of s 286, a reading of the reports obtained do not suggest any such limitations and as will be seen, they are directed towards the Respondent’s position generally covering those issues which are relevant to a claim for damages. Nor is there anything which might suggest that the choice of specialists in the first instance was limited in any way by the need to have such examinations carried out at a place convenient to the Respondent.
[24] There is nothing to suggest that those specialists are not available for the purposes of trial.
[25] In my view, the manner in which the Applicant has organised internally the processing of workers’ compensation claims on the one hand and damages claims on the other cannot be determinative of the issue.
[26] The Respondent has made it clear that she is prepared to undergo further examinations by the psychiatrist and the orthopaedic specialist who previously examined her on behalf of the Applicant. This, it seems to me, is a reasonable approach designed to ensure that the Applicant will be able to have an up to date opinion from specialists in those fields for the purposes of the litigation.
[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.
[28] The application is dismissed.