Bahonko v Moorfields Community and Ors (No 6) (Ruling)
[2013] VCC 873
•4 July 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION
Case No. CI-06-02573
| STANISLAWA BAHONKO | Plaintiff |
| v | |
| MOORFIELDS COMMUNITY | First Defendant |
| BODALLA AGE CARE SERVICES | Second Defendant |
| UNITING CHURCH IN AUSTRALIA | Third Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2013 | |
DATE OF RULING: | 4 July 2013 (Revised) | |
CASE MAY BE CITED AS: | Bahonko v Moorfields Community & Ors (No 6) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 873 | |
RULING
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Subject: ACCIDENT COMPENSATION – requirement to attend medical examinations
Catchwords: Plaintiff objects to attending medical examinations arranged by defendants – Court ordered plaintiff only required to attend examinations as ordered by the Court – defendants’ right to have plaintiff medically examined – s112 Accident Compensation Act and Order 33.04 of County Court Rules – not demonstrated defendants arranging examinations for other than bona fide purpose or practitioners retained lack impartiality or relevant expertise – medical evidence sought likely to be relevant to issues for determination.
Ruling:Plaintiff to attend specified medical examinations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | - |
| For the Defendants | Mr N B Chamings | Lander & Rogers |
HIS HONOUR:
1 On 1 September 2011, the Court of Appeal made an order that the plaintiff’s claim pursuant to s93(1) of the Accident Compensation Act 1985 (“the Act”) in which she sought to establish her entitlement to weekly payments of compensation under the provisions of the Act be the subject of a retrial.
2 In order to facilitate the retrial of the proceeding, a series of directions hearings have been convened and a number of procedural orders have been made.
3 In a directions hearing on 21 January 2013, the plaintiff made application to amend her Writ to plead the following further injuries:
(i) Spinal injuries;
(ii) Physical head injury; and
(iii) Injury to the eyes resulting in impairment of vision;
and was given leave to do so.
4 Further, it is clear that in this proceeding the plaintiff relies upon not only these injuries but also those set out in her Amended Statement of Claim which includes conditions described by the plaintiff as:
(i)imputed psychological disabilities;
(ii)imputed mental disabilities.
5 In the course of its preparation for the trial, the following medical examinations have been arranged on behalf of the defendants for the plaintiff’s attendance:
·Dr Patrick Daniels, a psychiatrist; date of proposed examination 17 January 2012;
·Dr Daniels, date of proposed examination 28 February 2012.
This was a further examination having regard to the plaintiff’s failure to attend the previous examination by Dr Daniels;
·Dr Daniels, date of proposed examination 29 January 2013;
This was a further examination having regard to the plaintiff’s failure to attend the two previous examinations by Dr Daniels;
·Dr David Gale, ophthalmologist, date of proposed examination 25 February 2013;
·Dr Max Werne, orthopaedic surgeon, date of proposed examination 8 March 2013.
6 The plaintiff has refused to attend any of the above medical examinations.
7 In arranging those examinations, the defendants rely upon the provisions of s112 of the Act which relevantly provides:
“The Authority or a self-insurer may require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner provided and paid for by the Authority or self-insurer.”
8 In the course of several directions hearings, the plaintiff has stated that she will not attend any medical examinations arranged on behalf of the defendants.
9 Having regard to:
· The position taken by the plaintiff that she would not attend medical examinations arranged for her on behalf of the defendants; and
· The view which I have reached that the plaintiff holds the firm belief that the defendants have no right to arrange medical examinations for her attendance and are arranging such appointments for an improper purpose;
I made an order that the plaintiff was not required to attend any medical examination arranged for her by the defendants in the absence of an order by myself that she be required to attend such examination and giving the plaintiff liberty to address me as to her reasons for taking that position.
10 For the purpose of allowing me to deal with this application I directed, on 15 May 2013, that the parties file affidavits setting out their respective positions. In dealing with the application, I have taken into account the material filed by each of the parties pursuant to that order. Further, I heard submissions from the parties as to their respective positions upon this issue in the course of a directions hearing held on 25 May 2013.
11 The plaintiff’s primary objection to attending the defendants’ medical examination involves a position taken by her that the provisions of s112 of the Act cannot be employed by the defendants to arrange medical examinations for her attendance in circumstances where the defendants have denied liability to make such payments.
12 The plaintiff also asserts that the medical practitioners retained by the defendants to examine her are not impartial and that the process being employed by the defendants of arranging medical appointments for her attendance is in itself not a bona fides process.
13 I am satisfied that the plaintiff’s position as to absence of any right by the defendants to arrange medical examinations for her attendance involves a misinterpretation of the meaning of s112 of the Act in that no qualification of the type asserted by the plaintiff in this instance, namely that s112 cannot be employed in circumstances where the defendants have denied liability to make payments under the Act.
14 I am further satisfied that in the circumstances which in the present, namely a claim in which the plaintiff has brought a proceeding claiming that she has an entitlement to the payment of compensation in the form of weekly payments pursuant to the provisions of s93 of the Act, s112 of the Act confers upon the defendants the right to arrange appropriate medical examinations for the purpose of their defence as to the plaintiff’s application.
15 Further, the right of litigants in the position of the defendants to have a plaintiff medically examined by appropriate trained medical experts for the purpose of:
· Assessing the nature and extent of any injury relied upon by that plaintiff; and or
· Obtaining expert opinion as to whether any such injury was occasioned in circumstances which create an entitlement to compensation under the Act;
is established not only upon of the provisions of s112 of the Act but also by reason of the provisions of Order 33.04 of the Rules of this Court, which provides:
“The defendant may request the plaintiff in writing to submit to appropriate examinations by medical expert or experts at specified times and places.”
16 For these reasons I am satisfied that unless the plaintiff makes good her assertion that:
· The defendants are employing a process which involves requiring the plaintiff to attend for medical examinations for a purpose other than the bona fide purpose of obtaining medical evidence relevant to their defence of the plaintiff’s application in this proceeding; or
· The medical practitioners retained on behalf of the defendants are in some way not impartial or that they do not possess the relevant expertise to opine as to the issues relevant in this proceeding;
the defendants are entitled to arrange appropriate medical examinations for the plaintiff’s attendance.
17 It is put on behalf of the defendants that in order to allow them to properly conduct their defence they should be entitled to arrange for the plaintiff to be examined by an ophthalmologist, an orthopaedic surgeon and a psychiatrist. This position is put on the basis that the plaintiff has not been medically examined by any expert on behalf of the defendants since her assessment by:
(i)Dr Timothy Entwisle, a psychiatrist, in December 2006;
(ii) Mr Andrew Danks, a neurosurgeon, in January 2007.
18 Having regard to the injuries and conditions relied upon by the plaintiff in this proceeding, I am satisfied that the expert evidence of appropriately qualified medical practitioners practising in the area of ophthalmology, orthopaedic surgery and psychiatry, may be relied upon by both the plaintiff and the defendants in providing evidence to the Court with respect to the issues which arise in this proceeding.
19 Further, having regard to:
(i)The plaintiff’s recent amendment of her pleadings;
(ii)The fact that a retrial in this matter is fixed for hearing in September of this year;
(iii)The fact that the defendants have not had the plaintiff medically examined since 2007;
(iv)The fact that the expert evidence upon which the plaintiff seeks to rely may involve the plaintiff calling medical practitioners with whom she has consulted during the period between January 2007 and the present date;
I am satisfied that the medical evidence sought by the defendants is likely to be relevant to issues which arise for my determination in the proceeding and accordingly that the defendants are entitled to arrange the medical assessments which are presently in place for the plaintiff’s attendance namely:
·Mr Justin O’Day, an ophthalmologist, on 12 August 2013;
·Mr Michael Dooley, an orthopaedic surgeon, on 18 July 2013;
·Dr Chris Grant, a psychiatrist, on 24 July 2013.
20 Further, I am not satisfied that the plaintiff has produced any persuasive evidence in support of her contentions that in arranging medical examinations for her attendance, the defendants are not acting in a bona fide manner or that any of the medical experts who have been retained to asses her are not appropriately qualified to do so or that they are not impartial.
21 As I have stated, having regard to the plaintiff’s position that the defendants were not entitled to arrange medical examinations for her attendance, I made an order on 15 May 2013 that the plaintiff was not required to attend any medical examination arranged for her by the defendants in the absence of an order by myself that she be required to attend such examination.
22 I made that order so as to allow the plaintiff an opportunity to justify her repeated refusal to attend the medical appointments which had been arranged on behalf of the defendants which she has failed to do.
23 Having regard to the timeframe for the trial which is fixed in this proceeding, in exercising my power to make such orders as will facilitate the appropriate and cost effective management of this proceeding, I am satisfied, taking into account:
· The history of the plaintiff’s repeated failure to attend medical examinations arranged on behalf of the defendants in this matter; and
· The plaintiff’s statements made in the course of previous directions that she has no intention of attending such appointments;
that I should make an order that the plaintiff attend each of the three medical examinations presently in place, namely;
·Mr Justin O’Day, an ophthalmologist, on 12 August 2013;
·Mr Michael Dooley, an orthopaedic surgeon, on 18 July 2013;
·Dr Chris Grant, a psychiatrist, on 24 July 2013;
as the plaintiff’s failure to do so will involve the defendants incurring unnecessary costs; will invariably prejudice the ability of the trial to proceed and is likely to stymie the wishes of all the parties to this proceeding that the matter be determined without further delay.
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