In a fairly recent (August 2013) scorching judgment related to a medical panel process, the Victorian Supreme Court has found an injured workers’ compensation dispute could have been easily resolved if the medical panel examination of the injured worker had been tape recorded.
The Victorian Supreme Court Justice David Beach said a board of inquiry had identified the need to record police interviews with suspects – to avoid “endless disputes in court about what was actually said” – in the mid-1970s.
Justice Beach also stated:
Medical panels and their opinions pervade in large numbers of cases brought under, or in accordance with, the provisions of both the Accident Compensation Act 1985 and the Wrongs Act 1958. Often in these cases, the decision of the relevant medical panel will finally determine rights. Further, the decisions of medical panels are required to be adopted and applied, and accepted as final and conclusive, by courts. In a steady number of these cases, there is a complaint made by the person examined that the medical panel has failed to take into account the relevant history given to it. In these circumstances, it is almost beyond belief that medical panel examinations are not recorded in such a way as to eliminate the potential for disputation over what was actually said or not said during the course of an examination. The routine failure to record these examinations is wasteful so far as the parties’ resources are concerned and so far as the scarce resources of this Court are concerned. Much of the time and expense involved with the conduct of the present proceeding would have been eliminated if the examination of the plaintiff by the medical panel had been recorded. And as I have said, this case is not unique in that regard.
Background of the workcover case
In August 2011, the injured worker who had suffered an injury – described as a” hernia, groin area” – at work in Feb 2010 (Windsor Caravans PTY Ltd) had his weekly payments terminated.
The injured worker’s workcover insurer (and as such his employer) claimed that the injured worker’s incapacity (for work) was not work related, and that the medical expenses he was claiming – including those for a total right hip replacement- were not reasonable or necessary.
The injured worker disagreed and the matter was eventually referred to a medical panel, which made a flawed opinion in the favour of the workcover insurer (and employer).
The questions posed:
Q1. What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
The Panel is of the opinion that the worker previously suffered temporary right hip symptomatic exacerbation in the presence of underlying (non-employment related) symptomatic osteoarthritis of the right hip in the presence of a CAM lesion and femoroacetabular impingement but this temporary exacerbation has resolved and the Panel is of the opinion that the worker is not now suffering from any medical condition of the right hip relevant to the claimed injury.
Q2. What is the extent to which any medical condition resulted from or was materially contributed to by the injury?
The Panel is of the opinion that the worker’s current medical condition of the right hip does not result from and is not materially contributed to by the claimed injury.
Q3. Does the worker’s incapacity for work result from, or is it materially contributed to by, the (claimed) injury?
In the Panel’s opinion any claimed incapacity for work does not result from or is it (sic) materially contributed to by the (claimed) injury.
Q4. Do you consider the medical services or proposed medical services namely, right hip replacement surgery, appropriate and adequate for the worker’s injury and/or condition? Specify service and frequency if necessary.
As you can see from the posed questions and answers, the Medical Panel found that any ongoing symptoms the injured worker experienced arose from an underlying “osteoarthritis condition”, and not his temporary right hip injury.
The Medical Panel also claimed the injured worker had told the Panel that he noticed an “onset of a ‘pulling feeling’ in his right groin” in mid-2009, which “came on for no apparent reason”.
The injured worker was obviously furious and was adamant that he he had told the Medical Panel that the pain had started when he lifted and moved a heavy caravan at work, in Nov 2009.
Appeal to squash the Medical Panel opinion
The injured worker, with the help of Shine Lawyers, sought an order to squash the Medical Panel’s decision. His primary argument was that the injured workers had clearly told the Medical Panel the pain arose from lifting and moving a heavy caravan component at work in November 2009.
Note: as outlined in our FAQ WorkSafe Vic section, the decision of the Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error.
It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion.
In order to appeal a decision of a Medical Panel, it is necessary to demonstrate that they have made procedural error. This type of appeal is very technical and must be made to the Supreme Court within strict time limits. If an appeal to the Supreme Court is upheld, the decision of the Medical Panel will be quashed and the matter sent back to the Medical Panel for a further decision. It is normal for the new decision to be made by different personnel at the Medical Panel.
The Supreme Court hearing
At the Victorian Supreme Court Justice Beach said the case could have been resolved “by the production of a tape or video recording of the examination”.
“However, as is notorious in cases of this kind, that was not to be: no tape or video recording was made of the (injured worker’s) examination – notwithstanding the potential for the absence of such a tape to be productive of, and conducive to, disputes of the present kind”
“Ordinarily one might well accept the correctness of a contemporaneous note made by an independent person, in preference to the recollection of an interested party recorded some weeks or months later.
“However, in this case the notes are capable of a number of interpretations: they do not amount to clear statements of what the (injured worker) was heard to say during the medical panel’s examination.”
“In these circumstances, it is almost beyond belief that medical panel examinations are not recorded in such a way as to eliminate the potential for disputation over what was actually said or not said during the course of an examination”
“The routine failure to record these examinations is wasteful so far as the parties’ resources are concerned and so far as the scarce resources of this Court are concerned.”
The Medical Panel’s decision was squashed and Justice Beach remitted the matter to a differently constituted Medical Panel.
You can read the full text of this interesting legal case here: B v Malios & Ors  VSC 404 (8 August 2013)
It is NOT the first time we hear and read of extremely flawed Medical Panel decisions.
For example, the Supreme Court recently (March 2014) found that a Victorian Medical Panel for a workcover matter acted unreasonably by failing to let an injured worker explain alleged inconsistencies between the surveillance footage obtained from the worker and the worker’s reported medical history, symptoms and presentation. Read the article titled: Medical Panel acted unreasonably – Supreme Court Victoria
[Post dictated by WCV and transcribed on her behalf]