Ratcliffe v Raging Thunder Pty Ltd
[2010] QSC 60
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Ratcliffe v Raging Thunder Pty Ltd[2010] QSC 60
- Add to List
Ratcliffe v Raging Thunder Pty Ltd[2010] QSC 60
Ratcliffe v Raging Thunder Pty Ltd[2010] QSC 60
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 9 March 2010 |
DELIVERED AT: | Cairns |
HEARING DATE: | 11 September 2009 |
JUDGE: | Jones J |
ORDER: | 1.Application is allowed. 2.That the plaintiff undergo a medical examination by a neurosurgeon, selecting from the following panel:- Mr Eric Guazzo (Townsville); Dr Terry Coyne; or Dr Michael Weidmann. 3.I give the parties liberty to apply by giving three business days notice to the other party. |
CATCHWORDS: | WORKERS COMPENSATION – application to compel a medical examination under s 282 of the Workers Compensation and Rehabilitation Act 2001 – is such a procedure unreasonable or unnecessarily repetitious – medical evidence to be adduced at a hearing – is further examination justified having regard to the defendant’s rights – reliance on differing medical opinions – does a neurosurgeon bring to the issues insights or skills which warrant the further examination |
COUNSEL: | J.O. McClymont for the applicant/defendant M Glen for respondent/plaintiff |
SOLICITORS: | MacDonnells Law for the applicant/defendant Maurice Blackburn Lawyers for the respondent/plaintiff |
[1] This is an application by the defendant seeking an order pursuant to s 282 of the Workers’ Compensation and Rehabilitation Act 2001 (WCRA) to compel the plaintiff to undergo a medical examination by one of three nominated neurosurgeons. The plaintiff resists the application on the grounds that such an examination would be “unreasonable or unnecessarily repetitious”.
[2] Section 282 relevantly provides:-
“282 Worker to undergo medical examination
(1)An insurer or 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) 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.
…”
[3] The plaintiff sustained injuries in the course of his employment with the defendant on 15 July 2005. He was engaged in the shared lifting of a raft when, without warning from the persons assisting, he was left to carry the whole weight of the raft. In his Statement of Claim he alleges he suffered the following injuries:-
(a) Injury to the lower back including:-
(i) disc protrusion at the L4-5 level;
(ii) annular tear at the L5-S1 level;
(iii) soft tissue injury to the lumbar spine region.
(b) Adjustment Disorder with depressed mood.
(c) Chronic Pain Disorder.
[4] The plaintiff made a claim for statutory compensation which was allowed until 2 March 2007. For the purpose of the statutory claim, the plaintiff was examined by three orthopaedic surgeons (Drs Todd, Morrey and Thomas) and by three psychiatrists (Drs Kar, Lotz and Heffernan). All told nine medical reports were received from the medical specialists – three of them from Dr Todd.
[5] The plaintiff was also examined by Dr Greg Etherington for treatment purposes on 7 February 2007 and he underwent a medico-legal examination on referral by his lawyers by Dr Scott Campbell, neurosurgeon, on 27 September 2007. Each of them recommended against the plaintiff undergoing any spinal surgery in the future. The investigations undertaken included MRI scans in August 2005 and in February 2007. Dr Campbell opines that the plaintiff’s condition is “stable and stationary, further recovery is unlikely” and Dr Todd’s latest report is to similar effect.
[6] On 21 January 2008, the plaintiff served a Notice of Claim for Damages and, having completed the pre-commencement procedures, issued his Claim on 16 October 2008. With the matter now approaching the time for requesting a trial date, the legal representatives have turned their attention to the medical evidence to be adduced at a hearing.
[7] Initially, the defendant sought additional examinations by an orthopaedic surgeon and by a psychiatrist who had not previously examined the plaintiff. The plaintiff objected to this on the grounds that to introduce new specialists in disciplines already covered was unreasonable and unnecessarily repetitious. At the same time the plaintiff agreed to be re-examined by Dr Todd and Dr Heffernan.
[8] Then followed an exchange of argumentative correspondence, which concluded with the defendant requesting a re-examination by Dr Kar in lieu of Dr Heffernan, and for a new examination by a neurosurgeon. The plaintiff agreed to the re-examination by Dr Kar but opposes the proposed examination by a neurosurgeon. This application seeks the determination of whether the plaintiff is required to submit to that examination by a neurosurgeon.
[9] The defendant contends it is entitled to seek that examination on the following grounds:-
1. The defendant has not yet had the opportunity to obtain a medico-legal opinion in relation to:
(a) The extent to which the significant pre-existing degeneration in the plaintiff’s lower lumbar spine was likely to have given rise to symptoms in the course of the plaintiff’s working life; and
(b) The plaintiff’s residual earning capacity.
2. The plaintiff obtained medical opinion from a neurosurgeon.
3. Given the nature of the symptoms alleged by the plaintiff, it is appropriate for the defendant to obtain comment from a neurosurgeon.
[10] To ameliorate the impact of its request, the defendant has indicated its preparedness to forego any re-examination of the plaintiff by Dr Todd. Thus the pre-trial examinations would be limited to that of Dr Kar and of the neurosurgeon yet to be selected.
[11] The plaintiff opposes the application, making a number of assertions that the new examination is unnecessary; that it inconveniences the plaintiff by invasion of his personal liberty and privacy when there have already been a number of examinations; that the defendant is “doctor shopping”, and that the defendant is attempting to avoid some part of Dr Todd’s opinion which he suggests the defendant finds inconvenient.
[12] The suggestion that the defendant’s request is activated by some motives of the kind alleged has no relevance to my consideration. The only question is the reasonableness or otherwise of the request. The proper course for me is to examine the medical reports which have been placed in evidence and to assess whether the further examination by a neurosurgeon is justified, having regard to the defendant’s rights.
[13] The reports received during the period of the statutory claim are now quite dated. I do not see in the approach of either party any intention to call all of the specialists who made a contribution during that period. In dealing with injuries to the spine there is often some overlap in the reliance of the opinions of neurosurgeons and of orthopaedic surgeons. Practitioners in each specialty traditionally carry out surgery in this area. Such practitioners are competent to advise as to whether surgery is necessary. That, however, does not mean that each specialty approaches the task the same way or using the same techniques.
[14] The question really turns on whether a neurosurgeon brings to the issue different insights or skills which warrant the further examination. The defendant argues that the plaintiff having obtained a second opinion from Dr Campbell, neurosurgeon, now denies the defendant the right to do the same thing. The fact that the plaintiff has chosen reports from a specialist in the particular field does not of itself give a right to a defendant to seek an examination by a matching specialist. It remains a matter of whether the request is a reasonable one. Whether that is so, ultimately is a matter of discretion. Starr v National Coal Board[1]. A perusal of the three reports of Dr Todd reveals his view that the plaintiff had signs of “fairly significant degeneration in his lumbar spine and a pars defect at levels L4 and L5”; that the plaintiff “did sustain a musculoligamentous injury or aggravation of his pre-existing degeneration from the injury in question”; that he was totally incapacitated for work; that the injuries had stabilised; that surgical treatment was not recommended; and that some pain had a psycho-somatic basis.
[15] Dr Scott Campbell had regard to the reports of Dr Todd and also to a number of reports from the abovementioned orthopaedic surgeons and psychiatrists as well as various general practitioner reports. Dr Campbell expressed the opinion that the plaintiff “sustained an L4/5 disc protrusion as a result of the work accident”; that he suffers chronic lower back pain and right radicular symptoms; that the work accident was the sole cause of the disk protrusion; and he has “an 11% whole person impairment”; and, that he would not recommend lumbar fusion.
[16] The comparison of these reports indicates there are differences in the opinions of the specialists, particularly as to the level of the plaintiff’s impairment that might be attributed to the incident. That difference might not be particularly wide once each specialist is questioned as to the bases relied upon, but there is a sufficient difference in my view to justify the defendant making the request for an examination by a neurosurgeon rather than being forced to rely upon the opinion expressed by Dr Todd in this field of overlapping expertise.
Conclusion
[17] I would therefore allow the application. I do not regard that there has been such delay in consenting to the application that warrants an imposition costs against the general approach to costs identified in s 316 of the WCRA.
[18] I make the following orders:-
1. Application is allowed.
2. I order that the plaintiff undergo a medical examination by a neurosurgeon, selecting from the following panel:-
(a) Dr Eric Guazzo (Townsville);
(b) Dr Terry Coyne; or
(c) Dr Michael Weidmann.
3. I give the parties liberty to apply by giving three business days notice to the other party.
Footnotes
[1] (1977) 1 All ER 243