Daniele v Roads and Traffic Authority of NSW
[2004] NSWWCCPD 32
•9 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Daniele v Roads and Traffic Authority of NSW [2004] NSWWCCPD 32
APPELLANT: Frank Daniele
RESPONDENT: Roads and Traffic Authority of NSW
INSURER:GIO General Limited
FILE NUMBER: WCC 19503-03: WCC 392-04
DATE OF ARBITRATOR’S DECISION: 12 February 2004
DATE OF APPEAL DECISION: 9 June 2004
SUBJECT MATTER OF DECISION: Referral to Approved Medical Specialist, Admission of medical reports, Application of Fletcher International Exports Pty Ltd v Reagan [2004] NSW WCC PD 7
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Geoffrey Edwards & Co, Solicitors
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
On 11 March 2004 Mr Frank Daniele (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 February 2004.
The Respondent to the Appeal is Roads and Traffic Authority of NSW (‘the Respondent’). The Respondent filed a submission, in reply to the appeal, on 1 April 2004.
The relevant insurer is GIO General Ltd.
The appeal was referred to me for review on 25 May 2004.
The appeal concerns the referral of the ‘medical dispute’ part of the worker’s claim to an Approved Medical Specialist. Mr Daniele has two matters before the Commission, which are being heard together. One claim is for compensation for medical expenses in relation to an alleged psychological impairment (WCC 392 of 2004). The second concerns a claim for compensation for permanent impairment, and pain and suffering in relation to an alleged injury to his back, right leg, left leg and neck (WCC 19503 of 2003). This latter claim does not include a claim for psychological injury.
The parties have filed a number of medical reports in both matters. The Arbitrator has directed that all reports filed with the Application and the Reply be sent to the appointed Approved Medical Specialists who are to assess Mr Daniele. Because of the different nature of his injuries an Approved Medical Specialist has been appointed to assess Mr Daniele, from each of the specialties of Orthopaedics and Urology.
The Respondent has filed medical reports of a Psychiatrist, Dr Roberts, in both matters.
The issue in dispute in the appeal is: Did the Arbitrator err in directing that all the documents filed with the Application and Reply, including the report of Dr Roberts, be sent to the Approved Medical Specialist?
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with section 354(6) of the 1998 Act and that this is the appropriate course in the circumstances.
SUBMISSIONS
The Appellant has submitted the Arbitrator erred in refusing to restrict the material that was provided to the Approved Medical Specialist, in particular in allowing the psychiatric report of Dr Roberts to be referred to the Urologist and Orthopaedic Specialists that were to assess Mr Daniele in relation to his permanent impairment claim. This report, says the Appellant, is irrelevant to the assessment of Mr Daniele’s alleged injuries to his back, legs and neck, and it is highly prejudicial towards him. To allow the psychiatric report to be sent, when the Approved Medical Specialist is to make a totally unrelated assessment is, says the Appellant, unfair and contrary to the objectives of the Commission, which require it to act with equity and good conscience (Section 354(3) of the 1998 Act).
The Respondent has submitted that the Arbitrator was correct to follow the decision of Fletcher International Exports Pty Ltd v Reagan [2004] NSW WCC PD 7 and refer all the evidence that was filed to both Approved Medical Specialists. The Respondent says that:
. . . the approved medical specialist is entitled to have before him/her all manner of information which will assist them in their determination including reports which question the Application’s veracity.
It is noted that Dr J Bodel in his report of 14 January 2003 refers to the “stress claim” which is the subject of Dr Robert’s report. Similarly the “stress claim” is a matter of comment/history in reports relied upon by the Applicant himself (for example see medical report, Dr J Du Toit, 7 February 2003).
DISCUSSION AND FINDINGS
The Arbitrator did not err in the application of Fletcher. In that decision I found that:
No Regulations or Rules have been made to give effect to section 294 A (1)(b), namely, in relation to disclosure of medical reports to an AMS. The result is that while a party is not permitted to file more than one medical report in any one specialty in proceedings before the Commission (constituted by an Arbitrator or Presidential Member), the Commission has no power to restrict the disclosure of information, including medical reports, to an Approved Medical Specialist. Effectively, the only limitation on obtaining multiple reports in the same medical specialty is that the party will not be entitled to recover the costs of obtaining a medical report that is not admitted in the proceedings.
The fact that the Regulations do not provide for restrictions on the “disclosure of medical reports (including X-rays and the results of other tests) to approved medical specialists” (section 294 A (1)(b)) is not cured by the general directive to the Commission to act according to“equity, good conscience and the substantial merits of the case” (section 354(3) of the 1998 Act).Approved Medical Specialists are not Members of the Commission. The statutory scheme for the assessment of medical disputes provides, essentially, that the Commission is the conduit for the referral of medical disputes to an Approved Medical Specialist (section 321 of the 1998 Act), who will issue a medical assessment certificate (section 325 of the 1998 Act). In cases of permanent impairment the Approved Medical Specialist’s assessment is binding as to certain matters (section 325 of the 1998 Act).
I accept the Appellant’s submission that it could result in unfairness to the worker if a psychiatric report is forwarded to the Urology and Orthopaedic Medical Specialists, whose assessment should be unrelated to any psychological injury. This would depend upon the weight, if any, that those specialists placed upon the psychiatric report, in making their assessment. However the Appellant’s remedy, if he is ultimately dissatisfied with the medical assessment, is to appeal to a Medical Appeal Panel.
The WorkCover Authority has announced that it is reviewing the Regulations in relation to the disclosure of medical reports to an Approved Medical Specialist where a medical dispute in the Commission is referred for assessment (Regulation 43 of the Workers Compensation Regulation 2003). Unless the Regulations are amended my view remains, as stated in Fletcher, that the Commission has no power to restrict the documents disclosed to an Approved Medical Specialist.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
9 June 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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