In this legal NSW case, the Court of Appeal has given a ‘wake up call’ to those who practice in the personal injury area. In jurisdictions such as the Workers Compensation Commission (WCC), where the usual practice is to tender medical reports without calling oral evidence from the author of the reports – including not so independent medical doctors well paid for by the workcover insurance company- it is important to ensure that those reports are clearly expressed and supported by complete reasoning. Even if a supplementary medical report is necessary, the cost of obtaining such reports or applying to admit such reports as “fresh evidence” ‘pales into insignificance’ when compared with the cost of an appeal. If gaps and frankly nonsense in any such medical reports are not filled or clarified in a logical manner a party runs the risk of an adverse outcome based upon an arguable construction of the report.
Wake up call for medical report writers
The case is quite complicated
In 2003 the (injured) worker suffered a back injury at work, as a truck driver with Brambles. He lost no time from work however had to perform suitable duties for a time before returning to his pre-injury duties. The injured worker alleged 3 recurrences of a back disability in 2004 and 2005 before leaving his employment at Brambles in March 2007. In May 2007, the injured worker started employment with Morrison, again as a truck driver. On 12 June 2007 his truck unfortunatelyoverturned in the course of his employment (with Morrison) and he sustained multiple injuries.
A claim for compensation benefits was subsequently accepted by Morrison. The injured worker did not resume employment with Morrison but on 31 July 2007 started work with another employer as a truck driver. On 21 September 2007 he awoke at home with a recurrence of painful back symptoms which prevented him from resuming work. A claim for compensation was made against Brambles, who, of course, disputed the claim.
The Workers Compensation Commission
The matter proceeded to a hearing before a Workers Compensation Commission (WCC) Arbitrator who awarded compensation against Brambles. However, On 18 June 2009, Brambles appealed to a Presidential Member.
The Presidential Member reviewed the medical evidence, which was conflicting – to say the least- on the issue of causation and which included a CT scan report of 29 January 2003 which showed a disc protrusion at the L4/5 level and an MRI scan of January 2008, which reported a ‘progression’ of the disc protrusion as well as disc pathology at another level.
The Presidential Member found that the injured worker’s incapacity from September 2007 resulted from disc damage caused by the injury in 2003.
The Presidential Member also accepted the opinion of Dr Conrad who, in a principal report dated 18 December 2007, concluded that the 2003 injury was the sole causative factor. The MRI scan of January 2008 was subsequently provided to Dr Conrad who, in a further report dated 31 January 2008, merely stated that it did not change the view he expressed in his earlier report.
The Court of Appeal
Brambles (the employer and undoubtedly the vicious insurer) appealed on the ground that the Deputy President erred in law by accepting Dr Conrad’s opinion on causation because Dr Conrad did not explain why the results of the MRI scan of January 2008 did not alter his previously expressed view. Yeah, WTF! The opinion was therefore inadmissible and / or of no rational probative value.Seriously!
Thankfully, the Court of Appeal unanimously dismissed the appeal.
Whilst he conceded that it would have been preferable if Dr Conrad expressed his opinion why the later scan was consistent with the natural progression of the 2003 injury, the omission to provide an explanation went only to the degree of weight to be given to the opinion. It did not make the opinion inadmissible.
Justice Tobias noticed that it is not unusual in personal injury cases for medical reports to be tendered without any oral evidence being called. The result is that the…
‘judicial officer hearing the case is unfairly handicapped by having to do his or her best with medical evidence which is not always as fulsome and clear as it might be if care had been taken by the legal representatives of the parties to ensure that before the reports are tendered, any gaps, ambiguities or cryptic comments in any report are filled or clarified. The costs of obtaining a supplementary medical report will pale into insignificance against the costs of litigation resulting from a failure to carefully consider the relevant evidence in a timely and efficient manner’.
Thankfully in this case, the Judge could see through the scheme, however it is extremely important to remind our treating doctors (and our lawyers) that they need to write fully reasoned reports, each single one as if no previous one was written, even if there may be dozens. Clearly the defense is really out to squash your injured case, by any possible way and at any COST.
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