Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 28
•7 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 028 |
PARTIES: | Yarrabee Coal Company Pty Ltd v Simon Blackwood (Workers' Compensation Regulator |
CASE NO: | WC/2014/23 |
PROCEEDING: | Application for Order for Medical Examination |
DELIVERED ON: | 7 February 2014 |
HEARING DATE: | 6 February 2014 |
MEMBER: | Industrial Commissioner Thompson |
ORDERS : | 1. Application is refused. 2. Costs are reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPLICATION FOR ORDER FOR MEDICAL EXAMINATION - Timeframes - Insufficient time for Respondent to respond to expert medical report - Disclosure - Prejudice to the Respondent - Application refused - Costs reserved |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 550, s 556(2) |
| APPEARANCES: | Mr J. Dwyer, Counsel instructed by CBP Lawyers for the Applicant. |
On 6 August 2013 Yarrabee Coal Company Pty Ltd filed a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) (WC/2013/257). Since that date there have been a number of amendments made to the Act which included the Respondent to the Appeal being abolished and from 29 October 2013. The new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator), who in turn now becomes the Respondent to the Appeal.
On 17 January 2014, an Application for an Order for Medical Examination was filed by the Yarrabee Coal Company Pty Ltd (the Applicant) with the Industrial Registrar seeking that, in terms of the substantive matter (WC/2013/257) that the following Orders be made:
"1.An Order pursuant to Section 556 of the Workers' Compensation and Rehabilitation Act 2003 that the Claimant, Ms Veronica Cashman submit to a medical examination by Dr Terrance Saxby, Orthopaedic surgeon.
2.The following decision:
(a)That the Claimant/worker Ms Veronica Cashman submit to a medical examination by Dr Terrance Saxby.
(b)That the appointment and examination is to take place at the first opportunity that Dr Saxby is available to consult with Ms Cashman.
(c)That the Applicant/Appellant will be liable for the costs of and incidental to the examination and report, such costs being the cost of examination, the report, travel and accommodation costs and, upon reasonable proof of such loss, Ms Cashman's usual wages or salary lost as a direct consequence of her attendance for the examination.
(d)That in the event that Ms Cashman cancels the appointment, or otherwise fails, refused or neglects to attend the appointment, she will be liable for any and all associated cancellation fees."
The Legislation
The relevant legislation pertinent to this Application is s 556 of the Act.
"556 Additional medical evidence
(1) This section applies if -
(a)the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or
(b)the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal.
(2)The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons.
(3)The appeal body may also, as the appeal body considers appropriate, make an order about -
(a)the way, time and place of the examination; and
(b)costs of the application for the order and of the examination.
(4)An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant.
(5) Subsection (6) applies if the claimant or worker -
(a)fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or
(b)having attended, refuses to be examined by a registered person; or
(c)obstructs, or attempts to obstruct, the examination.
(6)Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination."
Applicant
The Applicant provided an outline of submissions which, in the first instance, went to:
·Veronica Cashman (the worker) making an Application for Compensation on 6 February 2013;
·WorkCover Queensland (WorkCover) accepted the claim and advised of the Reasons for Decision on 11 March 2013;
·Applicant sought a review of the decision with the Regulator who affirmed the decision of WorkCover on 15 July 2013; and
·On 6 August 2013 the Applicant filed a Notice of Appeal against the decision of the Regulator and an initial Directions Hearing held on 3 September 2013 listed the matter for hearing on 14 March 2014.
The contentions of the Applicant were that the medical evidence relied upon by WorkCover and later the Regulator was that each of the practitioners Dr Rani Somasundaram, General Practitioner, and Dr Glen Gomez (Dr Gomez), Orthopaedic Surgeon, had accepted that the operation of vehicle control pedals was a significant contributing factor to the aggravation of the condition.
On 6 March 2013 the Applicant obtained a report from Kaitlyn McCallum (McCallum), Occupational Therapist, who had conducted an onsite examination of the work environment with the worker on 27 February 2013, having observed all of the activities undertaken by the worker in the course of her employment. The overall conclusion was that the worker's workplace appropriately supported her body in an ergonomic manner.
Neither medical practitioners (previously mentioned) had access to McCallum's report at the time they expressed their opinions on the causal connection between the condition and the worker's employment.
The Regulator was said to be in the possession of a copy of McCallum's report, but it was unclear whether it was considered when conducting the review (15 July 2013).
The Applicant further contended the views formed by the medical experts and the Regulator had been based on incomplete facts and the observations of a qualified Occupational Therapist would potentially have had a significant impact on the conclusions reached to date.
The submission went on to identify the legislation applicable in terms of medical examinations and cited, in support of the Application, Edmonton Nominees v Q‑COMP[1] (Edmonton) in which Deputy President Swan made the following observation:
"The applicant, referring to the substantive application [WC/2008/93] submitted that it disputed that any of the duties performed by the claimant had caused or contributed to the injury suffered by the claimant. To this end, it was submitted that whilst there had been one medical opinion available, "It is essential that evidence of those duties be put to the appropriate medical specialist, in this case a neurosurgeon, so that appropriate questions can be asked and answered in relation to the likely mechanism of any injury. [Transcript, p. 1-3, lines 30-34.]".
[1] Edmonton Nominees v Q-COMP [2008] 189 QGIG 815
The observations of the circumstances in Edmonton was said to be a basis for an exercise of the discretion and is apposite to this Application.
The difference in the specialties of Dr Gomez and the Orthopaedic Surgeon named in the Application as Dr Terrence Saxby (Dr Saxby) are such that it was more appropriate in the circumstances for Dr Saxby to conduct an examination of the worker.
The Applicant undertook to be responsible for all the costs associated with the independent medical examination and would immediately disclose Dr Saxby's report to the Regulator and the Commission upon its receipt.
There were two dates available for the examination to be conducted by Dr Saxby (subject to the convenience of the worker), those being 24 and 26 February 2014. Dr Saxby had assured the Applicant that a report would be released not later than three days after the examination.
In oral submissions, Mr John Dwyer of Counsel addressed issues including:
· McCallum's report may contain relevant data that may or may not influence medical opinions;
· Dr Saxby was a long-standing Orthopaedic Surgeon specialising in feet and ankles;
· Dr Gomez specialised in areas more broad than Dr Saxby;
· timelines prevented the opportunity to utilise a Panel of medical specialists which would have enabled a level of choice;
· Dr Saxby would provide his report by no later than 1 March 2014 which would allow the Regulator ample time to take whatever steps they may deem appropriate to address Dr Saxby's findings; and
· the Application was not an attempt to gain any advantage.
The exercise of discretion in favour of the Applicant would not adversely impact on the worker, Regulator or the conduct of the matter before the Commission, in fact to the contrary, the opinion obtained from a suitable specialist in possession of all facts will be of assistance to the Commission.
Regulator
The Regulator, in opposing the Application, offered a brief chronology of events relevant to the matter before the Commission:
·6 March 2013 - McCallum's report received by the Applicant;
·6 August 2013 - Appeal lodged with the Industrial Registrar against the decision of the Regulator;
·13 December 2013 - email received by the Regulator from Solicitors acting for the Applicant expressing an intention to seek an independent medical examination of the worker;
·6 January 2014 - the Regulator receives a copy of McCallum's report for the first time, noting the report had not previously been identified in the list of documents for the substantive matter (WC/2013/257); and
·17 January 2014 - the Application for an Order for a Medical Examination of the worker was filed with the Industrial Registrar.
The Regulator argued strongly in terms of timeframes in that even if a report from Dr Saxby was received no later than 1 March 2014, their position was likely to be prejudiced in that they would have insufficient time to seek to have their expert medical witness give comment on the report and the position would become even more difficult if a further report was required, bearing in mind the matter is listed for hearing on 14 March 2014.
The Regulator had not spoken to the worker since 22 January 2014 indicating she was not an easy person to contact and they were not in receipt of information regarding her availability or otherwise to undergo the medical examination on the dates proposed by the Applicant.
McCallum's report, it was argued, did not provide anything new, novel or telling and contained no new information that was likely to change matters.
The proximity of the trial date was such that the granting of the Application could likely prejudice the Regulator in the conduct of the matter.
Applicant's Submissions in reply
The Applicant informed the Commission that the worker had been a difficult person to communicate with, indicating a copy of the Application before the Commission was served on her through registered mail on 31 January 2014.
There was criticism of the Regulator in not being better informed on the worker's availability as she would be their primary witness in the forthcoming Appeal and there had been sufficient time available from the date of filing of this Application (17 January 2014) and hearing on 14 March 2014 to make such enquiries.
Conclusion
Firstly, both the Applicant and the Regulator were adamant in the course of the proceedings that they were opposed to disturbing the date (14 March 2014) that had been set for the hearing of the Appeal (WC/2013/257).
The Application, in seeking to have the worker personally examined pursuant to s 556 of the Act was premised on the need for such an examination due to the content of McCallum's report which necessitated a person of Dr Saxby's standing and expertise to conduct an examination of the worker.
There were a number of obstacles in the path of having the Application granted, not least of all the matter of timelines with the hearing date being some thirteen days after the Regulator would have received Dr Saxby's report (if the Applicant's submissions on the timing of the availability of that report turned out to be accurate). The Regulator correctly, in my view, argued that it was likely insufficient time would be available to appropriately respond to Dr Saxby's report should that be necessary and, as such, their case would be prejudiced with the possibility of the vacating of the date of hearing.
However, of a more pressing concern to the Commission is the manner in which the Applicant had dealt with McCallum's report since it was provided to them on 6 March 2013. The report was neither provided to the Insurer (WorkCover) or the Regulator at times relevant to their decision making processes and there was a failure to disclose the existence of the report to the Regulator in accordance with the requirements of the Further Directions Order of 4 September 2013. Contact was made with the Regulator on 13 December 2013 by Solicitors acting for the Applicant advising of the intention to seek to have the worker medically examined, yet still no disclosure made at that time, regarding the existence of McCallum's report. It is of fact the report was belatedly provided to the Regulator on 6 January 2014.
I regard the argument at this stage of any disadvantage to the Applicant in terms of matters arising out of McCallum's report as disingenuous in the circumstances and had there been proper disclosure of the report in December 2013 with an Application filed on or around 13 December 2013 rather than 17 January 2014, the prospects of success of the Application would have been somewhat greater.
In relation to the authority of Edmonton Nominees v Q-COMP[2] relied upon by the Applicant, I accept the submission that the direct quote is more than relevant in terms of an exercise of discretion, however when an Application is filed in circumstances where timeframes are not likely to provide appropriate time to a party to respond, then that decision is of limited value.
[2] Edmonton Nominees v Q-COMP [2008] 189 QGIG 815
Finding
On consideration of the submissions of both the Applicant and the Regulator in these proceedings, I have formed the view that to grant the Application for an Order for a Medical Examination of the worker in the circumstances would be highly inappropriate having regard to the timing of the proposed examination, release of Dr Saxby's report, and the date of hearing of WC/2013/257 being 14 March 2014.
The Regulator would likely be prejudiced in their ability to deal with any adverse matters arising from Dr Saxby's report in the narrow timeframe on offer being 1 March to 14 March 2014 and such prejudice would have arisen as a direct consequence of the actions of the Applicant in terms of their failure to disclose McCallum's report in a timely and proper way.
The failure to grant the Application, in my view, is unlikely to inhibit Dr Saxby from providing his expert opinion regarding the content of McCallum's report should he be required to give evidence in matter WC/2013/257 and as such the Appellant in that matter would not be prejudiced in the prosecution of their Appeal.
The Application is refused.
Costs are reserved.
I order accordingly.
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