State Transit Authority of NSW v Dadras
[2004] NSWWCCPD 87
•10 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87
APPELLANT: State Transit Authority of NSW
RESPONDENT: Hassan Dadras
FILE NUMBER: WCC10677-04
DATE OF ARBITRATOR’S DECISION: 13 October 2004
DATE OF APPEAL DECISION: 10 December 2004
SUBJECT MATTER OF DECISION: Whether treating specialists reports are included as medical reports under Clause 43A of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:8 December 2004
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Sommerville & Co. Solicitors & Notaries
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 13 October 2004, is revoked and the following decision is substituted in its place:
Those medical reports that are within the definition of “claims management phase reports” in Clause 45 of Part 10 of the Workers Compensation Regulation 2003 may be admitted in proceedings in the Commission and referred to an Approved Medical Specialist, in addition to the medical reports admitted under Clauses 43 and 43A.
The Appeal
On 10 November 2004 the State Transit Authority of NSW sought leave to appeal against the decision of the Arbitrator, made at a teleconference on 13 October 2004.
The Respondent to the appeal is Hassan Dadras.
Mr Dadras was employed by the State Transit Authority of NSW as a bus driver when, during 2002 and 2003, he allegedly suffered a number of injuries. He has now filed a dispute in the Commission in relation to a claim for workers compensation benefits by way of compensation for permanent impairment, pain and suffering and medical expenses.
The Arbitrator decided that the reports of Mr Dadras’ treating specialists could not be sent to the Approved Medical Specialist in addition to the reports of other practitioners in the same specialties. In the Arbitrator’s file note of 16 November 2004, issued in lieu of a transcript of the teleconference which was not recorded, the Arbitrator stated as follows:
“The Respondent was advised that it could nominate which specialist reports would be relied upon and sent to the AMS [Approved Medical Specialist] having regard to the limits of Regulation 43A, otherwise I would need to determine the issue. The Respondent was also advised that it was my view that the term ‘specialty’ as used in Regulation 43A was confined to medical specialties. The Respondent was advised that I did not accept that ‘specialty’ could be construed in such a manner that specialist reports of the same medical specialty, being the ‘applicant’s treating specialist’ and the ‘respondent’s specialist’, were both admissible by one party within the terms of Regulation 43A… I note that I did not determine which reports should be referred to the AMS, however I did express my views on the meaning the term ‘specialty’ as used in s43A as noted above.”
State Transit wants the decision set aside and a new decision made, that the reports of the treating specialists be admitted in the proceedings and included in the material sent to the Approved Medical Specialist, in addition to the reports of other practitioners in the same specialties. The admissibility and referral of treating doctors’ reports is the sole issue in dispute in the appeal.
Mr Dadras does not object to the reports of the treating specialists being sent to the Approved Medical Specialist.
An appeal hearing was held in this matter on 8 December 2004.
Leave to appeal is granted.
Does the Regulation allow the Reports of Treating Doctors to be sent to an Approved Medical Specialist in addition to the Reports of other Doctors in the same Specialties?
State Transit submits that:
· The Arbitrator erred in not allowing the worker’s treating specialist reports to be forwarded to the Approved Medical Specialist pursuant to Clause 43A of the Workers Compensation Regulation 2003 (the Regulation);
· Clause 43A of the Regulation was not intended to exclude treating specialists and GP reports, as this would be a denial of natural justice and would prevent the injury from being seen impartially and in proper relation to the worker’s medical history. It would be an injustice to adhere to case management rules too strictly and to ignore that legal disputes arise in a fallible world (Tagg v International Flavours [2003] NSW WCC PD 5),
· The Arbitrator’s decision not to forward the treating specialists’ reports to the Approved Medical Specialist is contrary to the objectives of the Workers Compensation Commission.
State Transit argue that all reports of treating specialists and general practitioners should be disclosed to the Approved Medical Specialist, as these are meant to be permitted in addition to the medico-legal reports offered by the parties’ doctors. State Transit submits that Clause 43A of the Regulation restricts only the medico-legal reports of specialists that were gained specifically for the dispute proceedings, and that there is no such restriction on the reports of treating specialists.
Mr Dadras, who supports the appeal, argues that in the alternative, the reports of the treating specialists are not ‘medical reports’, but are ‘treatment records’ and as such are not precluded by Clause 43A of the Regulation, from being sent to the Approved Medical Specialist. This submission has no merit.
For the reasons set out below it is my view that the parties are correct to assert that reports from the worker’s treating doctors are admissible in the proceedings before the Commission and may be sent to an Approved Medical Specialist.
Having come to that view I find the Arbitrator has erred in her interpretation of Clauses 43 and 43A of Part 10 of the Regulation. However, I make no criticism of the Arbitrator who made the determination. She made a difficult and complex decision in the context of a telephone conference and in the interests of moving the dispute forward in a timely way. The Regulation is not clearly expressed. In order to arrive at the interpretation that is urged upon me by both parties, it has been necessary to take a purposive approach to the construction of Part 10 of the Regulation, and in particular Clauses 43 and 43A. This requires a consideration of the ‘mischief’ that it is intended to address, the context within which the Clauses arise, the place of the particular Regulation within the statutory scheme and the objects of the Commission (Project Blue Sky & Ors Inc v Australian Broadcasting Authority (1988) 194 CLR 355; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; Solution 6 Holdings Limited& Ors v Industrial Relations Commission of NSW & Ors [2004] NSWCA 200).
The Purpose and Intention of Part 10 Of The Workers Compensation Regulation 2003
Section 127(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that a “medical report is admissible in proceedings before the Commission”. This section is subject to any provisions of the Regulation as to the giving of notice of the admission of a medical report (section 127(2)) and the number of medical reports that may be admitted (section 127(3)). In section 127, “medical report means any written report of a medical practitioner relating to the worker”.
Section 294A of the 1998 Act provides for the making of Regulations in relation to the admissibility of medical reports in proceedings before the Commission (see Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28; Inghams Enterprises Pty Limitedv Zarb [2003] NSW WCC PD 15; Carmody v Walter Merriman & Sons Pty Ltd [2003] NSW WCC PD 27 and Ryan v State Transit Authority of NSW [2004] NSW WCC PD 81 for a discussion of the statutory scheme in relation to the admission of medical reports and the process of referral to an Approved Medical Specialist in Commission proceedings).
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 the making of 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 states 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.
Part 10 of the Regulation Must be Read as a Whole
Part 10 of the Regulation has seven Clauses, which together detail the restrictions on obtaining and using medical reports in proceedings before the Commission and the District Court.
Clause 43 restricts the number of medical reports that may be admitted in proceedings to “only one medical report in any particular specialty”. A ‘permissible update’ of that medical report is also allowed.
Clause 43A took effect on 3 September 2004. It restricts the number of medical reports sent to an Approved Medical Specialist. It provides as follows:
“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.”
Clause 44 defines a “permissible update” of a medical report and the terms upon which it may be admitted in proceedings.
Clause 45 restricts the recovery of the costs of medical reports. It makes a distinction between types of medical reports, not made elsewhere in Part 10. Clause 45 provides as follows:
“45 Restrictions on recovery of cost of medical reports
(1) A party to proceedings on a claim is not entitled to be paid for or recover the cost of obtaining a medical report in connection with the claim unless the report:
(a)has been admitted in those proceedings on behalf of the party, or
(b)is a claims management phase report (as provided by subClause (2)).
(2) 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.
(3) In this Clause:
(a)a reference to a claim includes an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b)a reference to proceedings on a claim includes proceedings in respect of the payment of provisional weekly payments of compensation under that Part.
Clauses 46 provides that Part 10 “. . . does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment”.
Clause 47 exempts certain medical reports, including a medical report from an Approved Medical Specialist, from the restriction contained in Clause 43.
Clause 48 is a transitional provision.
It is necessary to consider Part 10 as a whole in order to understand the restrictions on medical reports that are contained therein. The term ‘medical report’ is not defined in the Part, nor elsewhere in the Regulation or in the Workers Compensation Act 1987. In the 1998 Act, ‘medical report’ is variously defined for the purpose of particular sections (see Sections 126 and 127 of the 1998 Act).
Clause 45 of the Regulation distinguishes between a medical report, simpliciter, and a medical report that is a ‘claims management phase report’. The latter encompasses the reports of the worker’s treating doctors.
I accept State Transit’s submission that the definition of “claims management phase reports” in Clause 45 is generally applicable throughout Part 10. I note that, contrary to the drafting of other Clauses where a definition is restricted ‘to this Clause’ or ‘for the purpose of this Clause’ (or ‘section’ in the 1987 and 1998 Acts), the definition of “claims management phase report” in Part 10 is not expressly restricted to Clause 45. I accept that it may be read as being so restricted, however to do so does not, in my view, further the objectives of Part 10 in any way.
State Transit rightly submits that Clause 45 provides for the recovery of costs for a “claims management phase report” and it is unlikely that it was intended such a report not be admissible in the proceedings and referable to an Approved Medical Specialist.
The result of this reading of Clause 45 is 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 this matter, as with many disputes, both parties seek to have the treating doctors’ reports in evidence before the Commission.
Part 10 and the Objectives of the Dispute Resolution Objectives of the Commission
Mr Dadras’s legal representative referred me to Section 324 of the 1998 Act and to the possibility that this provides a means by which treating doctors’ reports may be put before an Approved Medical Specialist. This section provides that an Approved Medical Specialist may call for the production of any information that he or she “considers necessary or desirable for the purpose of assessing a medical dispute referred to him or her”.
Mr Dadras submitted, and I agree, that Section 324 is not the proper avenue by which treating doctors’ reports should be lodged in Commission proceedings. The referral of a matter to an Approved Medical Specialist does not occur in every dispute, although it must occur before an order is made for lump sum compensation for permanent impairment. Reliance upon Section 324 to incorporate the reports of treating doctors would thus not be possible in every case and, in any event, would be dependent upon the exercise of the discretion of the Approved Medical Specialist.
Referral to an Approved Medical Specialist also does not occur at the time the dispute is filed in the Commission. It is at the time of filing an ‘Application’ and a ‘Reply’ in the Commission that the evidence upon which each party seeks to rely must be submitted (in accordance with the Workers Compensation Commission Rules 2003).
It is inconsistent with the objectives of the Commission (found in Section 354 of the 1998 Act) to delay the production of medical reports from the worker’s treating doctor until the point of assessment by an Approved Medical Specialist. Where the parties are fully informed of the case against them, they are in a better position to attempt to come to a settlement of their dispute at an early stage.
The Effect of Clause 43A of the Regulation
A related issue arises as to what is a ‘medical specialty’? This issue was decided in the matter of Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7. Clause 43A has since been inserted into the Regulation. However, Clause 43A does not include a definition of medical specialty, nor is there such a definition elsewhere in Part 10 of the Regulation. The position therefore remains as set out in Fletchers, namely:
“Neither the Act nor the Regulations set out a list of medical specialties. My own inquiries have found that the Australian Medical Council Incorporated (‘the AMC’) is the national standards body for basic medical education and, among other roles, it accredits Australian programs of specialist medical training. The AMC 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’. This is as good an authority as any on recognised medical specialties in Australia. The list includes ‘Field of Specialist Practice’ and ‘sub-specialties’. General Surgery and Orthopaedic Surgery are identified as distinct ‘sub-specialties’ of medical practice. In my view it is not appropriate to exclude a ‘sub-specialty’ from ‘particular specialty’ referred to in the Regulation (Clause 43).”
DECISION
In this matter I make the following orders:
The decision of the Arbitrator, of 13 October 2004, is revoked and the following decision is made in its place:
Those medical reports that are within the definition of “claims management phase reports” in Clause 45 of Part 10 of the Workers Compensation Regulation 2003, may be admitted in proceedings in the Commission and referred to an Approved Medical Specialist, in addition to the medical reports admitted under Clauses 43 and 43A.
Dr Gabriel Fleming
Deputy President
10 December 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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