Fishburn v Integral Energy Australia
[2005] NSWWCCPD 53
•24 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fishburn v Integral Energy Australia
[2005] NSWWCCPD 53
APPELLANT: Michael Fishburn
RESPONDENT: Integral Energy Australia
FILE NUMBER: WCC16050-2004
DATE OF ARBITRATOR’S DECISION: 14 February 2005
DATE OF APPEAL DECISION: 24 June 2005
SUBJECT MATTER OF DECISION: Admission of Medical Reports; ‘Claims Management Phase Reports’, Part 10, Clause 43 and Clause 43A of the Workers Compensation Regulation 2003; Discretion; Procedural Fairness; and Practice Direction No.3.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: White Barnes Solicitors
Respondent: Leigh Virtue and Associates
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 February 2005 is revoked and the following decision is made in its place:
1.The matter is referred to an Approved Medical Specialist.
2.The reports of Dr Hughes, and Dr Edwards are admitted into evidence in the proceedings and are to be disclosed to the Approved Medical Specialist.
CONTENTS PAGE
Background 1
Issues in Dispute 1
‘On the Papers’ Review 2
Jurisdiction 2
Did the Arbitrator err in directing that the reports of Doctors
Edwards, Smith, Ehrlich and Hughes be admitted in the proceedings
and disclosed to the AMS? 3
The Rule 40 Error 3
The Clause 43A Error 4What is a ‘Particular Specialty’? 6
Compliance with Practice Direction No. 3 7
“Claims Management Phase Reports” 7
The Relevance Error 9
Discretion to Admit - Clause 43 of the Regulation 10
Disclosure to AMS - Clause 43A of the Regulation 12
Application to the Facts 13
The Procedural Fairness Error 15
Application of Part 10 of the Regulation – Summary 15
Decision 16
Costs 17
Background
Michael Fishburn (‘Mr Fishburn’) has made a claim on his employer Integral Energy Australia (‘Integral’), for lump sum compensation for permanent impairment and pain and suffering, as a result of an injury suffered from a fall off a ladder at work on 18 January 2001. He has also claimed compensation for reasonable medical expenses in relation to the injury, including chiropractic treatment. He claims to have injured his neck, his back and both arms at or above the elbow. When the injury occurred he was working for Integral as an electrical fitter/mechanic. He has continued in this employment.
Integral deny liability for the claim on the basis of medical reports which opine that Mr Fishburn does not suffer from a permanent impairment to any part of his body and that the chiropractic treatment he received was not reasonably necessary to treat his alleged injury.
The dispute went before a Commission Arbitrator at a telephone conference on 9 February 2005. The Commission is not permitted to finally determine a claim for permanent impairment compensation, unless the worker has been assessed by an Approved Medical Specialist (‘AMS’). The Arbitrator therefore referred the matter to an AMS for an assessment of the degree of Mr Fishburn’s permanent impairment, if any.
The Arbitrator directed that the medical reports of Doctors Edwards, Smith, Ehrlich and Hughes, filed by Integral, be admitted as evidence in the proceedings and sent to the AMS. Mr Fishburn disputes this direction on appeal.
Issues in Dispute
Mr Fishburn seeks a new direction limiting the number of medical reports submitted by Integral that are admitted in evidence in the proceedings and that are disclosed to an AMS.
Integral submits that the Arbitrator was correct in admitting all four of the medical reports into evidence and in disclosing them to the AMS. It argues that the Arbitrator’s decision should stand.
The Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the Workers Compensation Regulation 2003 (‘the Regulation’) restrict the number of medical reports that may be admitted into evidence in Commission proceedings and, also, that may be disclosed to an AMS (see: section 127 of the 1998 Act, ‘Admissibility of medical reports’, section 294A of the 1998 Act, and Part 10 of the Regulation).
Mr Fishburn submits the Arbitrator was wrong to allow the reports of Doctors Edwards, Smith, Ehrlich and Hughes to be disclosed to the AMS. He argues that the Arbitrator erred in:
· admitting the reports into evidence, in breach of Rule 40 of the Workers Compensation Commission Rules 2003 (‘the Rules’) (‘the Rule 40 Error’),
· admitting the reports into evidence, in contravention of clause 43A of the Regulation 2003 (‘the Clause 43A Error’),
· admitting the reports into evidence, when they were not relevant to the proceedings (‘the Relevance Error’), and
· denying him procedural fairness by not excluding the medical reports (‘the Procedural Fairness Error’).
On the Papers Review
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Integral submits that the matter may be determined on the papers “only if” leave is refused, or if the substantive appeal is refused. In my view this submission is inconsistent with the words and the purpose of section 354(6). Where all the relevant material is filed in an appeal a Presidential Member is entitled to exercise discretion to proceed to determine the matter on the papers regardless of the nature of that final determination.
Mr Fishburn submits that the appeal may be determined on the papers.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Jurisdiction
Before proceeding to deal with an appeal the Commission must determine whether the application meets the threshold requirements of section 352 of the 1998 Act.
The decision under appeal is not an award of an amount of compensation. It is, nonetheless, a ‘decision’, being a ‘direction’ as that term is defined in section 352(8) of the 1998 Act. The application of the threshold requirements of section 352(2)(a) and (b) of the 1998 Act has been considered by the Commission in a number of matters (see Mawson v Fletcher International Exports Pty Limited [2002] NSW WCC PD 5, ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21, Ingram v Norco Co-operative Limited [2003] NSW WCC PD 1, Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3, Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5, Workcover Authority v Riordan [2003] NSW WCC PD 13 and Grimson v Integral Energy [2003] NSW WCC PD 29).
Integral submits that the direction, concerning what medical reports are to be admitted into evidence in the proceedings and are to be referred to an AMS, is purely procedural, and, therefore, does not put any ‘amount of compensation at issue’ in the dispute. It argues that the nature of the decision does not bring it within those cases which have a ‘real capacity to put the award of compensation at issue in the appeal’ (Integral submissions at paragraph 2). In support of this submission Integral refers to my decision in Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7. I am not sure that this submission supports Integral’s argument because in that matter I said (at paragraph 28):
“. . . the Arbitrator’s decision concerns the admission of medical evidence and the consequent referral of the medical dispute to an Approved Medical Specialist (‘AMS’). The determination of certain medical issues by an AMS is binding on the parties, subject only to appeal to a Medical Appeal Panel. In these circumstances I accept that the evidence that is before the AMS is likely to be of critical importance to his or her determination of the medical issues. In this sense the decision clearly has the potential to put the amount of compensation claimed by the Appellant in issue (see also Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28).”
The same considerations apply in this appeal and I, therefore, reject Integral’s submission.
I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of 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), and
·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).
Leave to appeal is granted.
Did the Arbitrator err in directing that the reports of Doctors Edwards, Smith, Ehrlich and Hughes be admitted in the proceedings and disclosed to the AMS?
The Rule 40 Error
Mr Fishburn submits that Integral failed to specify the nature of the evidence that it intended to rely upon in the proceedings before the Commission but did not have at the time of the filing of the Reply. The reports of Doctors Ehrlich and Hughes were not filed with the Reply and were not specified in the ‘Reply’ form. This, argues Mr Fishburn, amounts to a failure to comply with Rule 40.
Rule 40(1)-(3) provides as follows:
“40 Material to be lodged by respondent
(1) For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.(2) Subject to sub-rules (3) – (5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the respondent has lodged and served with the reply a statement
revealing:(i) the specific nature of the evidence, and
(ii) the reliance the respondent intends to place on the evidence, and
(iii) the reasons why the evidence is not available at the time of service, and
(iv) the time it is expected to be available, and(b) the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of sub-rule (2).”
Integral completed the ‘Reply’ form, in part, as follows:
Nature of Evidence - “Medical/expert Reports”
Author - “TBA”
Intended reliance on Evidence - “For these Proceedings”
Reason not Available - “Not yet obtained”
I agree with Mr Fishburn’s submission that completion of the ‘Reply’ in this manner does not comply with the requirements of Rule 40(2). The information provided is so general as to be meaningless, and does not address the matters set out in Rule 40(2)(a) (i) –(iv). The consequence is that Integral cannot rely upon the operation of Rule 40(2) to introduce the reports of Dr Hughes and Dr Ehlich into the proceedings without leave. Whether to admit the reports will be up to the Arbitrator, exercising her discretion under Rule 40(3). The failure of Integral to properly comply with Rule 40(2)(a) (i) –(iv) will be a relevant matter.
The Clause 43A Error
The medical reports filed by Integral, disclosed to the AMS by the Arbitrator, and at issue in the dispute are those of:
·Dr Edwards, General Surgeon, 5 August 2004,
·Dr Smith, Urologist (area of specialty is in dispute) 1 August 2003,
·Dr Ehrlich, Orthopaedic Rehabilitation Specialist (area of specialty is in dispute), 9 November 2004, and
·Dr Hughes, Orthopaedic Surgeon, 25 November 2004.
Clauses 43 and 43A (effective from 3 September 2004) of Part 10 of the Regulation provide as follows:
“43 Restrictions on number of medical reports that can be admitted
(1)In any proceedings on a claim:
(a) only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings, and
(b) a medical report in a specialty may not be admitted on behalf of a party to the proceedings if another medical report in that specialty has already been admitted on behalf of the party in any other proceedings on the claim or in proceedings on a related claim.
(2)Despite subclause (1) (b), a medical report in a specialty may be admitted in proceedings even if another medical report in that specialty has already been admitted in other proceedings on the claim or a related claim if:
(a) the medical report to be admitted is a permissible update (under clause 44) of the medical report already admitted in the other proceedings, or
(b) the proceedings are lump sum compensation proceedings and the other proceedings were not lump sum compensation proceedings, but only so as to allow the admission of a medical report provided by the same medical practitioner who provided the medical report already admitted in the other proceedings.
(3)The medical report allowed to be admitted under subclause (2) (b) can however be provided by another medical practitioner if the medical practitioner who provided the medical report already admitted in the other proceedings has ceased (permanently or temporarily) to practise in the specialty concerned.
(4)Subclause (2) operates only as an exception to subclause (1) (b) and does not affect the requirement under subclause (1) (a) that only one medical report in a particular specialty may be admitted in proceedings on behalf of a party.
(5)For the purposes of this clause, a medical report in more than one specialty is to be regarded as a medical report in each of those specialties.
(6)In this clause:
lump sum compensation proceedings means proceedings on a claim for compensation under Division 4 of Part 3 of the 1987 Act (whether or not the proceedings are also proceedings on a claim for any other compensation).
related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation.43A Restriction on disclosure of medical reports to approved medical specialists
A medical report is not to be disclosed to an approved medical specialist in connection with a claim unless:
(a) the report was admitted in proceedings on the claim, or
(b) the report was nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce in evidence in proceedings on the claim, or
(c) the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent (as the case may be), or
(d) the approved medical specialist calls under section 324 (1) (b) of the 1998 Act for the production of the report.”
Mr Fishburn has framed his grounds of appeal in terms of the admission of medical reports pursuant to Clause 43A of the Regulation. However, Clause 43A is concerned with the disclosure of medical reports to an AMS. It is Clause 43 that addresses the restriction on the admission of medical reports in Commission proceedings. This is discussed further below.
The purpose and intent of Part 10 of the Regulation were discussed in State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87 (‘Dadras’), as follows:
“Part 10 of the Regulation (Clauses 42-48) provides for “Restrictions on Obtaining Medical Reports”. In Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7, I discussed the legislative purpose of regulations limiting the use of medical reports in disputes before the Commission. Guidance is found in the second reading speech of the Workers Compensation Legislation Amendment Bill 2000 by the Minister, the Hon. J. Della Bosca, who said:
‘Schedule 7 [of the Workers Compensation Legislation Amendment Bill 2000] introduces a regulation-making power to provide for restrictions on the number of medical reports that may be introduced in proceedings. Investigation costs, including the obtaining of medical reports, have increased dramatically in recent years. The Supreme Court and the District Court have introduced rules to limit the number of medical reports. The number of reports will be limited but not the number of specialties required to examine the injured worker.
The intent of the amendment in schedule 7 is to minimise doctor shopping whereby multiple reports are sought to maximise the party’s case. This applies to both injured workers and insurers. It is not the intent of the proposals to limit the treatment provided to an injured worker, and this issue will be given close attention in the drafting of the regulations. Consideration has also been given to circumstances where additional reports are required, for example where the condition deteriorates or there is significant delay between conciliation and court proceedings.’ (NSW Legislative Council, Hansard, 1 November 2000, at page 9460).”
This extract makes it clear that the purpose of making regulations is to stop the excessive cost, time and potential unfairness that result from both parties seeking to maximise their advantage in the dispute by filing numerous medical reports. The Minister expressly stated that this objective is not to be achieved at the cost of proper treatment of the injured worker. The record of this treatment, by the worker’s treating general and specialist medical practitioners, is critical to the ultimate determination of the worker’s rights and entitlements under the statutory compensation scheme.
Mr Fishburn argues that the Arbitrator erred in treating the four disputed reports as being from four different specialties (Clause 43(1) of the Regulation) and in categorising the reports of Doctors Edwards and Smith as ‘claims management phase reports’ (Clause 45 of the Regulation).
What is a “Particular Specialty”?
Neither the Act nor the Regulation sets out a list of medical specialties or gives any guidance to the Commission on how to determine what is a ‘particular medical specialty’. This difficulty was discussed in Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7, following which Regulation 43A was introduced. However, Regulation 43A does not assist with this definitional problem.
The Australian Medical Council Incorporated is the Australian national standards body for basic medical education and, among other roles, it accredits Australian programmes of specialist medical training. It produces an information booklet entitled ‘Application Procedures and Requirements for Specialist Assessment’. Table 1 of the 4th Edition, March 2003 contains a ‘List of Fields of Specialist Practice in Australia’. The list includes ‘Field of Specialist Practice’ and ‘sub-specialties’ of medical practice and is a reference tool for Arbitrators to determine whether medical reports submitted are from a ‘particular specialty’, which in my view may be either a ‘specialty’ or ‘sub-specialty’. In this list ‘Urology’ and ‘Orthopaedic Surgery’ are ‘sub-specialties’ of Surgery. ‘Rehabilitation Medicine’ and ‘Occupational Medicine’ are separate specialties, as is General Surgery. The Arbitrator has properly relied upon this source to identify General Surgery (Dr Edwards), Urology (Dr Smith), Orthopaedic Surgery (Dr Hughes) and Occupational Medicine (Dr Ehrlich) as different specialties, and has found, therefore, that the reports are not inadmissible by operation of Clause 43(1) of the Regulation.
Mr Fishburn relies upon the reasoning of Neilson J in Bailey v The University of Newcastle 13 NSWCCR 217. In that case Neilson J distinguished the different disciplines applied by a psychologist and a psychiatrist, but found that both met the definition of ‘medical expert’ within the meaning of the Compensation Court Rules 1990 (Part 20, Rule 1(2)). Similarly, Mr Fishburn argues, Doctors Edwards (General Surgeon), Smith (Urologist) and Ehrlich (Occupational Medicine) approach their assessment of the worker from ‘the same perspective’ and should therefore be considered to be from the same ‘particular medical specialty’. Bailey’s case does not assist Mr Fishburn with this argument. Neilson J’s comments lend support to the view that ‘sub-specialties’ within the Australian Medical Council’s list of specialties have a distinct area of expertise. As noted above ‘General Surgery’, ‘Orthopaedic Surgery’ and ‘Urology’ are sub-specialties of Surgery in the Australian Medical Council List. Neilson J said (at 222):
“. . . it is very much like a bad back, that a neurologist or neurosurgeon and an orthopaedic surgeon might each carry out a similar examination of the back and might come to the same view, that is that there was nothing wrong, or alternatively that there was a disc lesion at some low lumbar level. However, they are looking at things from a different perspective, from the perspective of their professional discipline”.
If it is established as a matter of fact that Doctor Edwards is a General Surgeon, Dr Smith is a Urologist and Dr Ehrlich is an Orthopaedic Rehabilitation Specialist or Occupational Physician, and they are recognised professionally as such, in accordance with the Australian Medical Council guidelines, then the Arbitrator has not erred in treating them as separate specialties. Nor has the Arbitrator erred in referring their reports to the AMS who is to assess Mr Fishburn. Similarly Dr Hughes, as an Orthopaedic Surgeon, is from a different ‘particular medical specialty’.
Compliance with Practice Direction No.3
Mr Fishburn argues that Doctors Edwards, Smith and Ehrlich are all of the same specialty, namely General Surgeons, and Dr Hughes is an Orthopaedic Surgeon. The Arbitrator found on the evidence before her that Dr Edwards is a General Surgeon, Dr Smith is a Urologist, Dr Ehrlich is an Occupational Physician and Dr Hughes is an Orthopaedic Surgeon.
On their face the medical reports of Doctors Edwards and Smith do not clearly identify their particular specialties. Nor do any of their four reports comply with the Commission’s ‘Practice Direction No. 3 – Expert Evidence’, which requires that an expert whose report is tendered in Commission proceedings must “give details of the expert’s qualifications”. The reports of Doctors Edwards and Smith do not detail their qualifications nor do they state that Dr Edwards is a ‘General Surgeon’ and Dr Smith is a ‘Urologist’.
It is for the party introducing a medical report to ensure that it complies with Practice Direction No. 3 and that the particular area of expertise is clearly identified. Any approach to construing ‘particular specialty’ in Clause 43(1) that requires an Arbitrator to go behind the stated qualifications of doctors to determine whether their expertise involved an assessment of injury based upon ‘different perspectives’ would be unreasonable and unwieldy, and may lead to inconsistent outcomes.
“Claims Management Phase Reports”
Clause 45(2) of the Regulation defines a ‘claims management phase report’ as follows:
“The following medical reports are claims management phase reports:
(a) a medical certificate that accompanies a claim for weekly payments of compensation,
(b) a medical certificate that accompanies an initial notification of injury,
(c) any medical report provided by a medical practitioner as part of and in the course of treatment of the injured worker by the medical practitioner,
(d) any medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act.”
The medical reports of Doctors Edwards and Smith were obtained, on 5 August 2004 and 1 August 2004 respectively. This was immediately following notification of the claim to Integral by Mr Fishburn (12 July 2004) and prior to commencement of proceedings in the Commission (7 October 2004). The Arbitrator found that these reports were ‘claims management phase reports’. They were “addressed to the Respondent directly” and concerned “the need for ongoing treatment, in particular chiropractic treatment”.
Integral argues that the Arbitrator’s decision was correct as these reports “have clearly and unequivocally (sic) been obtained by the Respondent employer for the purpose of managing the claim” and they are therefore ‘claims management phase reports’ pursuant to Clause 45(2)(d).
Mr Fishburn argues that the Arbitrator was wrong to categorise the reports of Drs Edwards and Smith as ‘claims management phase reports’, and therefore admissible in the proceedings before the Arbitrator, regardless of whether they were from the same ‘particular specialty’. He refers to the reasoning in the matter of Dadras:
“the exception to Clause 43A in Dadras [for ‘claims management phase reports’] ought to be confined to reports of treating doctors who are in a position to cast light on contemporaneous history of causation, symptoms and treatment. This exemption should not be extended to reports of doctors qualified by the Respondent.
. . . The confinement of the exemption to Clause 43A to only relate to treating doctors in our submission would not create any procedural unfairness as there is a significant limitation of the number of doctors who could be categorised as treating doctors.”
Dadras concerned the application of the 1998 Act and the Regulation to the reports of ‘treating doctors’ in relation to claimants under the Workers Compensation Acts. In that matter I found that :
“. . . the reference to ‘medical reports’ referred to in Clauses 43, 43A and 44 is what is commonly known as ‘medico-legal’ reports. In other words, medical reports that are not from treating doctors, but that have been obtained by either party, from independent medical experts, for the purpose of proving or disproving an entitlement under the Workers Compensation Act 1987. “Claims Management Phase Reports” are not restricted by Part 10.
In my view this is the correct interpretation to be given to the use of the term ‘medical report’ throughout Part 10 of the Regulation, i.e. that it refers to a ‘medico-legal’ report, not to a ‘claims management phase report’ as defined in Clause 45. It is also an interpretation that leads to a result that is commonly accepted as fair, reasonable and necessary as between workers, employers and insurers who are parties to a workers compensation dispute. Medical reports by treating medical practitioners form an integral part of the evidentiary matrix of a worker’s claim for compensation. Treating doctors’ reports usually document the symptoms of injury, treatment, incapacity and prognosis in relation to resolution, stabilisation or permanent impairment. They are relied upon by both the worker and the insurer in relation to management of the worker’s claim, return to work and determination of entitlements.”
In my view the Arbitrator has not erred in finding that reports meeting the criteria set out in Clause 45(2)(d) are ‘claims management phase reports’. Indeed it is not possible to find otherwise on a literal reading of the Clause. It would be unfair and unreasonable to exclude only this category of ‘claims management phase reports’ (from Clause 45(2) (a)-(d)) as potentially inadmissible under Clause 43 (and therefore outside the exemption described in Dadras).
Whether a report is a ‘claims management phase report’ is a question of fact. Integral claims that Dr Edwards and Dr Smith’s reports were “in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act”. The requirements of section 119 must, therefore, be met before it can be relied upon to bring the reports within the exception in Clause 45(2)(d).
In proceedings in the Compensation Court of NSW (before that Court was abolished on 31 December 2003) there were two distinct procedures governing the medical examination of workers at the request of employers. Section 119 applied only where the matter was not before the Court, or the worker was the subject of a continuing award. However, where a matter was before the Court, the authority for requiring a worker to be medically examined arose by operation of Part 20, Rule 2 of the Compensation Court Rules 1990. The Court considered section 119 of the 1998 Act in the matter of Godfrey v Wollongong Women’s Information Service Incorporated (1999) 19 NSWCCR 74. The particular construction given to section 119 in that case was related to the power to order an examination by a ‘medical expert’ set out in the Court’s Rules.
The 1998 Act now provides for the Commission to direct that a worker be examined by an Approved Medical Specialist (section 120 of the 1998 Act). This appears to create a different, yet similarly dual approach (section 119 examination or section 120 examination), to subjecting the worker to medical examination at the request of an employer. If it does, then there may be a real question as to when the ‘claims management phase’ of a claim for workers compensation benefits finishes (and similarly as to the status of any reports purporting to be obtained during that period).
In any event it is not necessary to decide this particular issue in this case as the ‘Application to Resolve a Dispute’ was filed in the Commission by Mr Fishburn on 7 October 2004 and the medical reports of Doctors Edwards and Smith had been obtained prior to this, on 5 August 2004 and 1 August 2004 respectively.
Mr Fishburn detailed his claim for lump sum compensation to Integral by letter of 12 July 2004. Integral then arranged for Mr Fishburn to be medically examined in August 2004. This was clearly for the purpose of determining its liability, if any, for his claim. Mr Fishburn then wrote to Integral again in September 2004 asking if it then, having obtained its own medical opinion, wished to resolve his claim.
The Arbitrator did not err in finding that the reports of Doctors Edwards and Smith, were ‘claims management phase reports’ within the definition of Clause 45(2)(d).
The Relevance Error
Mr Fishburn argues that the Arbitrator has an overriding discretion to refuse to disclose the medical reports of Doctors Smith and Ehrlich to the AMS on the ground of relevance. He argues that the report of Dr Smith (Urologist) is not relevant, as no claim has been made that Mr Fishburn suffers a “urological injury”. Similarly, Mr Fishburn argues that as there is no claim for weekly compensation, a report of a ‘Rehabilitation Specialist’ (Dr Ehrlich) is not relevant to the issues in dispute.
Mr Fishburn purports to rely upon Rule 70, which provides that:
“70 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Rule 70 does not apply to an AMS, who is not a member of ‘the Commission’ (section 368 of the 1998 Act; nor is a Medical Appeal Panel ‘the Commission’, see Campbelltown City Council vVegan [2004] NSWSC 1129).
Mr Fishburn also purports to rely upon my decision in Claverie v State Transit Authority of NSW [2004] NSW WCC PD 39, but this submission is without merit. That matter was an application for leave to refer a question of law. The decision refused leave and no substantive issues were decided.
Integral disputes the assertion that the reports of Dr Ehrlich and Dr Smith are irrelevant. Integral submits that it “is self evident that the suggestion that a report from a Urologist is irrelevant to a claim where a claimant does not allege or claim a urological injury is wrong” and that “the value of an expert medical opinion is not dependent upon the specialty of the expert giving the opinion”.
Discretion to Admit - Clause 43 of the Regulation
Mr Fishburn’s submissions raise the question: Does the Arbitrator have a discretion to refuse to admit medical reports not otherwise restricted under Clause 43 of the Regulation? In my view the answer is ‘yes’.
Clauses 43 and 43A of Part 10 of the Regulation express certain ‘mandatory’, but not exclusive, grounds upon which the admission of medical reports (Clause 43) and their ‘disclosure’ to an AMS (Clause 43A) are to be ‘restricted’. I do not accept that it was intended by the legislature that an Arbitrator be compelled to admit a medical report which, while it meets the requirements as to being ‘only one’ report in that ‘particular specialty’ or is a ‘claims management phase report’, is otherwise irrelevant to the dispute that is before the Commission for resolution. Such an interpretation is inconsistent with the Minister’s stated intention to “minimise doctor shopping whereby multiple reports are sought to maximise the party’s case” (see Minister’s speech quoted above). If there is no discretion to refuse to admit a medical report, not otherwise precluded by operation of Clause 43, there is potential for a party to circumvent the procedural rules governing the admission of evidence in the Commission (Rule 38 and Rule 40 for example) by relying upon Clause 43 to allow the admission of one report in a ‘particular medical specialty’.
Section 354 of the 1998 Act sets out the ‘Procedure before [the] Commission’. Section 354 (1)-(3) provides, relevantly, as follows:
(1)“Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
. . .”
Rule 70, set out above, provides that when informing itself the Commission must take into account only evidence which is, among other things, relevant to the facts and the issues in dispute. Unqualified opinions, such as those of a medical expert commenting on a matter outside of his or her area of expertise, are not acceptable evidence in Commission proceedings. In my view an Arbitrator may exercise his or her discretion to refuse to admit a report, which is otherwise admissible under Clause 43. In making this decision the Arbitrator must take into account the procedural ‘principles’ set out in section 354 of the 1998 Act and the matters set out in Rule 70.
Integral’s submission that “the value of an expert medical opinion is not dependent upon the specialty of the expert giving the opinion” is untenable. The accumulation of medical evidence, regardless of its relevance or persuasiveness, attributable to the fact that the ‘expert’ is reporting on matters within his or her defined area of ‘expertise’, is nonsensical. Taken to its logical conclusion it could result in the mandatory admission of a medical report that is from a specialty totally irrelevant to the claim, and of no assistance to an AMS appointed by the Commission to assess permanent impairment (for example, a Rheumatology report on a heart condition).
It is arguable that medical reports or other evidence, generally admissible but deemed irrelevant by the Arbitrator should nonetheless be admitted, with the Arbitrator giving that evidence no weight in the decision-making process. This would be the normal course in a Court where the rules of evidence apply. However, the Commission is not a Court; it is an independent Tribunal that is a creature of statute. The process for the determination of ‘medical disputes’ in the Commission is established by the 1998 Act and is unique (Part 7 of Chapter 7 of the 1998 Act). Permanent impairment claims involve a binding determination by an Approved Medical Specialist, which ultimately forms the basis for the worker’s entitlement to compensation for a permanent injury. AMSs are not members of the Commission. The Registrar of the Commission refers a medical dispute to an AMS for assessment (section 321 of the 1998 Act). Accompanying that referral is the evidence relied upon by the parties to the dispute (WorkCover Medical Assessment Guidelines, Clause 13). Legal issues relating to matters such as jurisdiction, liability for injury (in most cases, see WorkCover Guides, ‘Introduction’) and the admission of evidence are determined by an Arbitrator prior to the referral to the AMS. It is incongruous that potentially admissible evidence deemed irrelevant to the dispute by the Arbitrator, must be disclosed to an AMS. In my view this is likely to lead to confusion on the part of the AMS and to error in the medical assessment i.e. by reliance upon irrelevant considerations in making that assessment. Where it is possible to interpret the relevant statutory provisions to avoid this possibility, that interpretation is to be preferred. This approach supports a construction that allows an Arbitrator to restrict the ‘admission’ of irrelevant evidence and therefore its disclosure to an AMS pursuant to Clause 43A(a). Ideally the Arbitrator should assist the parties to identify the evidence that will be relevant to the AMS’s consideration of the medical issues in the particular case.
Disclosure to AMS - Clause 43A of the Regulation
Mr Fishburn’s submissions raise the further question: Does the Arbitrator have a discretion to refuse to disclose to an AMS a medical report that is not otherwise restricted pursuant to Clause 43? In my view the answer is ‘yes’.
Clause 43A restricts what is to be disclosed to an AMS in connection with a claim and clarifies the distinction between the admission of a medical report in proceedings before the Commission and the disclosure of a medical report to an AMS for the purpose of a medical assessment (see Fletcher).
Clause 43A(a) allows the disclosure of a medical report to an AMS if it has been “admitted in proceedings on the claim”. In my view it is significant that Clause 43A(a) does not add “in accordance with Clause 43”. Clause 43A(a) includes those reports that are generally admissible in Commission proceedings, and are not otherwise excluded by the Arbitrator because they offend Rule 70 or are restricted by Clause 43. This would include a ‘claims management phase report’ that met the principles set out in Rule 70, namely relevance and probity. As discussed above, the admission of evidence in proceedings in the Commission is subject to the 1998 Act (section 354) and the Rules (Rule 70) as well as the Regulation. If, for example, Clause 43 did not restrict the report of Dr Ehrlich, but the Arbitrator had refused to admit it because he or she considered it not relevant to the issues in dispute, then Clause 43A(a) does not force the disclosure of Dr Ehrlich’s report to the AMS.
Clause 43A(b) refers to “the report [that] was nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce in evidence in proceedings on the claim”. This allows for reports to be disclosed that are identified by the parties as evidence they will introduce in the proceedings, but which they do not yet have (pursuant to the Workers Compensation Commission Rules 2003 (Rules 38, 40 and 42)).
Clause 43A(c) refers to “the report [that] was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent (as the case may be)”. This is also referable to Clause 43(1) and refers only to the particular specialty report admitted pursuant to Clause 43(1).
Clause 43A(d) clearly refers to reports called for by the AMS pursuant to section 324(1)(b) of the 1998 Act.
A simple reading of Clause 43A, which concludes that a medical report fitting any of the descriptions in (a)-(d) must be disclosed to an AMS, is attractive. However, this ignores the difficulties that may arise in reconciling the disclosure of a medical report to an AMS pursuant to Clause 43A with an Arbitrator’s procedural obligations under section 354 and the Rules governing the admission of evidence in Commission proceedings.
Difficulty arises, for example, in the interaction between Clause 43, restricting the admission of specialist medical reports, and Clause 43A, restricting disclosure of those medical reports to an AMS. If it is accepted that the Arbitrator retains a discretion to refuse to admit a medical report that complies with Clause 43, but does not comply with the principles set out in Section 354 of the 1998 Act and Rule 70, then logically Clause 43A(b) and (c) must similarly be subject to the Arbitrator’s discretion. To read them otherwise could lead to the result that medical reports not admitted into evidence in the proceedings may nonetheless be disclosed to the AMS for the purpose of the medical assessment.
A second difficulty with a simple reading of Clause 43A arises where the Arbitrator has refused leave to a party to introduce a medical report because of non-compliance with Rule 38(2) (the Applicant) or Rule 40(2) (the Respondent). Without the Arbitrator retaining a discretion in relation to the disclosure of a report referred to in Clause 43A(c) the result would be that a report excluded by Rule 38 or Rule 40 must nonetheless be disclosed to an AMS pursuant to Rule 43A(c). Argument may also arise where, as in this case, the party has purported to nominate the report that it intends to introduce into evidence (pursuant to Rule 40(2)), but that nomination is rejected because it is insufficiently particularised to comply with Rules 38(2)(a) or 40(2)(a).
A different reading of Clause 43A is that sub-clauses (b) and (c) apply only where the matter has not been considered by an Arbitrator prior to referral to an AMS, and, therefore, no decisions in relation to the ‘admission’ of evidence have been made. This would leave the Registrar to determine whether medical reports filed by the parties met the description in (b) and/or (c). The Regulation is not expressed in this way and in my view it is reading matters into the Clause that are not there and are not called for.
In my view an Arbitrator also has a discretion not to disclose a medical report described in Clauses 43A(b) and 43A(c) (as with 43A(a) discussed above) where that report has not been admitted in the proceedings.
As I noted in Fletcher and Dadras, Part 10 of the Regulation is problematic. In particular, it does not make clear the approach to be taken to the determination of what areas of medical practice constitute a particular medical specialty. Many of the arguments about the definition of ‘medical specialty’ could be overcome by greater specification in the Regulation, perhaps in the form of a Schedule. The Regulation does not clearly specify the way in which the reports of the worker’s treating doctors are to be considered in evidence in Commission proceedings, other than in relation to a claim for the costs of such a report. Clause 43A of the Regulation, while specifically addressing the distinction between the admission of a medical report and its disclosure to an AMS, is ambiguous in relation to its interaction with Clause 43 and the Rules of the Commission in relation to the introduction and admission of evidence. To date the Commission has had to resolve these issues on a case-by-case basis by way of interpretation of the Regulation, in the context of its purpose and intent. Express clarification of these important issues in the Act or the Regulation is desirable.
Application to the Facts
The exercise of administrative discretion should be overturned only where it has not been exercised fairly and according to law. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re: National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]). Whether or not another decision-maker, or an appellate tribunal, would simply have come to a different view is irrelevant.
In this matter the Arbitrator expressly considered whether she should exercise her general discretion in relation to the admission of medical evidence, and direct that the four disputed medical reports not be admitted in the proceedings. She stated that “if I have such a discretion, in the circumstances of this case, where there are two case management reports and two medico-legal reports from different specialties, I decline to exercise any such discretion”. The Arbitrator did not address the matters raised by Mr Fishburn, namely: that the report of Dr Smith, Urologist, is not relevant as no claim has been made that Mr Fishburn suffers a ‘urological injury’ and, that as there is no claim for weekly compensation, a report of a ‘Rehabilitation Specialist’, Dr Ehrlich, is not relevant to the issues in dispute. These are relevant factors to the exercise of the discretion to ‘admit’ the reports. The error on the part of the Arbitrator has resulted in the failure to exercise her discretion fairly and lawfully and is grounds for review of the decision.
On review of the Arbitrator’s decision I am satisfied that the reports of Dr Hughes and Dr Edwards should be admitted in the proceedings and disclosed to the AMS for the following reasons:
·Dr Hughes is clearly qualified as an Orthopaedic Surgeon. His report is the only report in that particular specialty that is relied upon by Integral and it is relevant to the nature of the injury for which compensation is claimed. Although Integral did not give sufficient detail of the nature of Dr Hughes report to enable its introduction pursuant to Rule 40(2), its relevance and probative value are sufficient to enliven the discretion to grant leave for it to be introduced into evidence pursuant to Rule 40(3). Although not filed with the Reply the report was filed on 8 December 2004, prior to referral of the matter to the Arbitrator.
·Dr Edwards is qualified as a Surgeon (General Surgeon). His report is the only report in that particular specialty that is relied upon by Integral and it is relevant to the nature of the injury for which compensation is claimed. In addition it was filed with the ‘Reply to the Application to Resolve a Dispute’.
·Both reports give probative evidence as to the issues in dispute and they will assist the AMS in the assessment of the degree of permanent impairment, if any, suffered by Mr Fishburn as a result of his injury.
I am not satisfied that the reports of Doctors Ehrlich and Smith should be admitted into evidence or disclosed to the AMS for the following reasons:
·The ‘particular specialty’ claimed by both Doctors Ehrlich and Smith is not evident from the reports, nor is there a statement of their expertise in accordance with Practice Direction No.3.
·The finding that the report of Doctor Smith is a ‘claims management phase report’ does not mean that it should automatically be admitted in the proceedings nor that it should be disclosed to the AMS. The Arbitrator has a discretion to refuse to admit and disclose the report. It is Integral who seeks to rely upon Dr Smith’s report. I accept Integral’s claim that Dr Smith’s particular specialty is Urology. However I find that his particular expertise is not directly relevant to the assessment of Mr Fishburn’s claim of injury to his back, right and left arms and shoulders, as a result of a fall from a ladder at work.
·If, as claimed by Integral, Dr Ehrlich is an ‘Occupational Physician’ (his report is headed ‘Orthopaedic Rehabilitation’) his report is the only one of that particular specialty relied upon by Integral. Dr Ehrlich’s report was not identified with sufficient detail to enable its introduction pursuant to Rule 40(2) and, taking into account its lack of relevance to the proceedings I would not exercise the discretion to grant leave to admit it pursuant to Rule 40(3). I am not satisfied that any injustice flows to Integral in refusing to allow it to introduce Dr Ehrlich’s report into the proceedings. His particular expertise is not directly relevant to the assessment of Mr Fishburn’s claim of permanent impairment to his back, right and left arms and shoulders. Mr Fishburn has not made a claim for compensation by way of weekly benefits and Dr Ehrlich’s report makes no comment on any aspect of ‘rehabilitation’ in relation to Mr Fishburn’s injury. Having refused to allow the report of Dr Ehrlich to be introduced into evidence in the proceedings (pursuant to Rule 40(3)) I also exercise the discretion to refuse to disclose it to the AMS.
The Procedural Fairness Error
The Commission is bound by the principles of procedural fairness. Mr Fishburn submits that “to give effect to this procedural fairness” the Commission must ensure there is “equality in the opportunity to obtain and present material and evidence”. To this end, he submits, the Commission should consider the inequality of financial resources as between the insurer and the worker and their respective abilities to obtain medical specialist reports. This factor, says Mr Fishburn, should influence the Commission to be “rigorous in excluding medico-legal reports by an Insurer/self Insurer which do not satisfy the legislative criteria or are irrelevant to the proceedings”.
I agree with Integral’s submission, that the assertions as to ‘procedural fairness’ are not material to the appeal. It is misconceived to frame them in terms of a breach of procedural fairness. The content of procedural fairness in a particular case is determined by the nature and context of the decision (Kioa v West (1995) 159 CLR 550). However there is no rule of procedural fairness that requires an inequality in the financial resources available to a party to be remedied by the decision-maker. Procedural fairness requires that a party be appraised of the case against him or her and be given the opportunity to meet that case, it does not require a decision-maker to do more than provide that opportunity (Sullivan v Department of Transport (1978) 20 ALR 323). The second limb of procedural fairness, which is not raised as an issue in this appeal, requires an impartial and unbiased decision-maker.
The Arbitrator did not err in failing to provide the parties procedural fairness. This ground of appeal is not made out.
Application of Part 10 of the Regulation – Summary
In summary, the application of Part 10 of the Regulation to the facts of this matter is as follows:
· Rule 40. Rule 40 requires that evidence to be introduced but not available at the time of the filing of the Reply must be clearly specified. If the evidence is not clearly specified then leave must be obtained pursuant to Rule 40(3) prior to its admission. In this matter Integral failed to properly specify the evidence that it intended to introduce. Leave is granted to admit the report of Dr Hughes. Leave is not granted to admit Dr Ehrlich’s report.
· “Particular Specialty”. The determination of what is the “particular specialty” of a medical expert is a matter of fact. The party submitting the report must detail the doctor’s relevant qualifications in accordance with Practice Direction No.3. Accepting that Dr Edwards is a General Surgeon, Dr Smith is a Urologist, Dr Ehrlich is an Occupational Physician and Dr Hughes is an Orthopaedic Surgeon, then each of their reports are from a particular specialty, pursuant to Clause 43 of the Regulation (Australian Medical Council’s list of specialties and sub-specialties).
· “Claims Management Phase Reports”. Clause 43 of the Regulation does not apply to a ‘claims management phase report’. The reports of Dr Edwards and Dr Smith are ‘claims management phase reports’ pursuant to Clause 45(2)(d) of the Regulation.
· Clause 43 of the Regulation. Pursuant to Clause 43 of the Regulation an Arbitrator cannot admit more than one medical report in a particular specialty on behalf of a party in Commission proceedings. In this matter I have found that the four reports are from different specialties therefore the restriction in Clause 43 of the Regulation does not apply.
· Clause 43A of the Regulation. Pursuant to Clause 43A of the Regulation a medical report is not to be disclosed to an AMS unless it is a report identified in Clause 43A(a)-(d) of the Regulation.
· Discretion to Admit. Subject to the mandatory restrictions on the number of medical reports that may be admitted in Commission proceedings, an Arbitrator has a discretion in relation to the introduction of evidence into Commission proceedings (section 354 of the 1998 Act and Rule 70), and may:
·admit or refuse to admit a ‘claims management phase report’ into the proceedings,
·refuse to admit a medical report in a particular specialty, even if that report is not restricted by Clause 43 of the Regulation.
· Discretion to Disclose to an AMS. Subject to the mandatory restriction on the disclosure of medical reports to an AMS an Arbitrator has a discretion to refuse to disclose a medical report to an AMS which has not been admitted into evidence in the proceedings, although disclosure of the medical report is not otherwise restricted pursuant to Clause 43A of the Regulation.
· Discretion must be exercised fairly and lawfully. The relevance and probative value of a medical report is a ‘relevant consideration’ in the exercise of this discretion (Rule 70).
· Procedural Fairness- applies to Commission Proceedings.
In terms of the practice and procedure of the Commission in medical disputes this means that the referral of a matter to an AMS is not simply a matter of copying the Commission file. Consistent with the expectation that an Arbitrator would have reviewed the matter and determined outstanding legal issues such as liability, the Arbitrator should also have considered what medical reports, if any, are admissible and should be disclosed to the AMS for the purpose of the particular assessment he or she is being asked to make. Ultimately this should lead to greater clarity as to the nature of the referral to the AMS for assessment. It also ensures that the evidence upon which the Arbitrator’s decision is based is consistent with the evidence upon which the AMS’s decision is based, i.e. evidence that is relevant and probative of the issues in dispute. In those matters where liability and other legal issues are not in dispute, and where the Commission is effectively only a conduit for a medical assessment by an AMS, the Registrar (or her delegate) may, pursuant to her authority to refer the matter (section 321 of the 1998 Act and Clause 13 of the WorkCover Guidelines) determine whether medical reports may be disclosed to an AMS pursuant to Clause 43A.
Decision
The decision of the Arbitrator dated 14 February 2005 is revoked and the following decision is made in its place:
1. The matter is referred to an Approved Medical Specialist.
2. The reports of Dr Hughes, and Dr Edwards are admitted into evidence in the proceedings and are to be disclosed to the Approved Medical Specialist.
Costs
Mr Fishburn has been successful on the appeal and it is appropriate to order that the Respondent pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
24 June 2005
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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