Woolworths (Qld) Pty Ltd v Berry-Porter

SUPREME COURT OF QUEENSLAND

CITATION:

Woolworths (Qld) P/L v Berry-Porter [2002] QSC 360

PARTIES:

WOOLWORTHS (QUEENSLAND) PTY LIMITED
ACN 000 034 819
(applicant)
v
DIANNE MAREE BERRY-PORTER
(Respondent)

FILE NO/S:

s749 of 2002

DIVISION:

Trial

PROCEEDING:

Application for medical examination

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

30 October 2002

DELIVERED AT:

Townsville

HEARING DATE:

28 October 2002

JUDGES:

Cullinane J

ORDER:

Application dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – where respondent obtained medical reports during the time in which the compensation claim was being processed - where respondent elects to claim damages under WorkCover Queensland Act 1996 –– where applicant nominated panel of specialists to independently examine the respondent - where applicant asks respondent to choose a specialists from each panel to examine respondent on behalf of the applicant – whether applicant has an unqualified right to an examination of the respondent by specialists unaffected by previous medical examinations

WorkCover Queensland Act 1996 s162(1), s 203, s 286

Muller v Nebo Shire Council (2002) QSC 084 considered
Starr v National Coal Board (1977) 1 All ER 243 considered

COUNSEL:

W Elliott for the applicant
P de Plater for the respondent

SOLICITORS:

Boulton, Cleary and Kern for the applicant
Turner Freeman for the respondent

1. The Applicant, a self insurer under the WorkCover Queensland Act 1996 as amended, seeks an order that the Applicant be ordered to undergo an independent medical examination on behalf of the Applicant by both an orthopaedic specialist and a psychiatrist.

1. The Respondent, then an employee of the Applicant injured her right ankle on the 4^th February 2000.

1. She made application for workers’ compensation payments. She received compensation and an assessment was made under s 203 of the WorkCover Queensland Act of permanent impairment. 

1. The Applicant has obtained a number of medical reports during the time that the claim for compensation was being processed and up until the time that the assessment of permanent disability was made.

1. These include reports from Dr Mansfield who was the Respondent’s treating orthopaedic surgeon and Dr Blue who examined the Respondent at the request of the Applicant pursuant, I have been told, to s 162 of the Act. 

1. The Respondent also obtained a report from Dr O’Hare, a psychiatrist who had treated the Respondent and also from Dr Likely, a psychiatrist based in Townsville and who examined the Respondent at the Applicant’s request.

1. The Respondent has been also referred to a general medical assessment tribunal for an assessment of her psychiatric condition and an assessment that she has a permanent psychiatric condition, ascribable to her injuries was made on the 14^th December 2001.

1. The Respondent has elected to claim damages and in April 2002 solicitors who had been appointed to act on behalf of the Applicant wrote to the solicitors for the Respondent nominating a panel of orthopaedic specialists (three) and a panel of psychiatrists (four).  The Applicant asked the Respondent to choose a specialist from each of the panels to independently examine her…