The changing definition of 'medical report' in the Workers Compensation Commission

State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87

This decision of Deputy President Fleming of 10 December 2004 looks at the complex regulations which attempt to limit medical reports used in Workers Compensation Commission proceedings. But rather than crystallising the issue, the decision may have opened up a Pandora’s box.

The Law

Part 10 (clauses 42-48) of the Workers Compensation Regulation 2003 provides for restrictions on obtaining and using medical reports in Commission proceedings. Clause 43 restricts the number of medical reports that can be admitted to one report in any particular specialty on behalf of each party. There are two exceptions to this restriction. They are limited to situations where (i) there is more than one set of proceedings on the claim or (ii) there are proceedings on a related claim. Even then, the exceptions only apply where the medical report to be admitted is a "permissible update" or where the proceedings are for lump sum compensation and the other proceedings are not.

Clauses 43 and 43A restrict the number of medical reports which can be admitted and sent to an approved medical specialist (AMS). Essentially a party is entitled to rely upon one medical report in any particular specialty and permissible updates. Clause 44 defines those reports that are "permissible updates" as reports issued either more than six months after the original report or because of a "further material change" in the worker’s condition. Clause 45 provides that a party to proceedings is not entitled to be paid for or recover the cost of obtaining a medical report unless the report has been admitted in those proceedings or is a "claims management phase report".

"Claims management phase reports" are defined by subclause 45(2) as a medical certificate that accompanies a claim for weekly payments of compensation or an initial notification of the injury; any medical report provided by a treating doctor; and 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 Workplace Injury Management and Workers Compensation Act 1998.

State Transit Authority of NSW v Dadras considers the interpretation of "medical reports" as referred to in Part 10.

The decision is significant. It has considerably lifted the restrictions imposed by clauses 43 and 43A.

The Facts

Mr Dadras allegedly suffered injuries in 2002 and 2003 while employed by the State Transit Authority of NSW as a bus driver. He filed an application in the Commission in relation to a claim for impairment lump sums and medical expenses. At a teleconference in October 2004 the dispute was referred to an AMS. The employer sought to have the reports of the worker’s treating specialists sent to the AMS in addition to (medico-legal) reports of other medical practitioners of the same specialties. The arbitrator refused to admit the treating specialist reports in addition to the employer’s reports of other practitioners in the same specialties, having regard to clause 43A. The employer appealed. The worker supported the appeal.

The Decision

On reviewing Part 10, Deputy President Fleming said the regulations had not been clearly expressed. She was persuaded by the parties’ arguments that the intention of the legislator was to allow disclosure to an AMS of all treating doctor reports in addition to medico-legal reports. She accordingly took a "purposive approach" to the construction of Part 10 by finding that reference to "medical reports" in clauses 43, 43A and 44 should be read as references to "medico-legal" reports. However, those reports which are not medico-legal reports go beyond treating doctor reports and include all those reports defined as "claims management phase reports" in clause 45.

This interpretation of the words "medical reports" in clauses 42-48 of the Regulation enabled the Deputy President to revoke the arbitrator’s decision and to admit in the proceedings and refer to the AMS all those medical reports within the definition of "claims management phase reports" (in this case, the treating specialist reports), in addition to the reports of other medical practitioners of the same specialties.

The Implications

The decision is significant. It has considerably lifted the restrictions imposed by clauses 43 and 43A. It limits the restrictions to medico-legal reports and exempts both the reports of treating doctors and those reports obtained from doctors who examined the worker for the employer/insurer pursuant to section 119.

Pre-Dadras, a strict reading of Part 10 would have resulted in, for example, a worker being limited to reliance on the report of only one GP in circumstances where (for a number of reasons) he may have consulted a succession of different GPs who each provided reports. Such an interpretation could be viewed as unfair and unreasonable and a denial of natural justice. Deputy President Fleming’s decision has addressed this. However, it has gone further than that. In addition to permitting the use of treating doctor reports it has also opened the door for employer/insurer section 119 reports to be referrred to an AMS and admitted into evidence because these reports are also claims management phase reports.

There are doubts about the correctness of this decision. In clarifying the regulations, Deputy President Fleming has read a limitation into the definition of the term "medical reports" for which there is no statutory basis. There is nothing in the wording of any of the Part 10 clauses to support the limited definition of "medical reports" as expressed by Deputy President Fleming. Indeed, clause 45 refers to Part 10 "medical reports" as including, not excluding, claims management phase reports.

In any event, given that the result in Dadras could benefit both workers and employers, it will be interesting to see whether issue is taken with the Deputy President’s reasoning in the future. Until then, the position in proceedings where there is no second set of proceedings nor any related proceedings, is as follows:

• Each party may only have admitted (and have sent to an AMS) one medical report in any particular specialty.
• The restriction does not apply to reports of treating doctors
• The restriction does not apply to reports obtained by an employer/insurer in accordance with s.119 of the 1998 Act.
• Parties can have admitted refresher medical reports of treating doctors and doctors who examined the worker pursuant to s.119.
• Refresher medico-legal reports and more than one medico-legal report from doctors of the same specialty are precluded.

Arguably this decision has brought the law in relation to the use of medical reports in Commission proceedings back to the situation which existed following the Deputy President’s decision in Fletcher’s International Exports Pty Ltd v Regan [2004] NSW WCC PD7; which is what the introduction of clause 43A on 3 September 2004 sought to change.