Treating practitioners will be aware of the ongoing need to provide medical reports in relation to a patient's injury including opinions in relation to treatment needs and work capacity. Often, in disputes between the worker and the insurer, the final decision will involve a referral to the Medical Panel who independently assesses the questions in dispute and provides a binding opinion (unless, as is demonstrated below, the Medical Panel has made errors in law).
Since the Court of Appeal decision in the Supreme Court of Victoria in Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, more onerous obligations have been placed on the doctors who provide Medical Panel opinions. In particular, the Medical Panel are now required to provide more reasons for their opinions.
In the case of Gruma, Ms Bakar was employed as a process worker at a bread manufacturing factory. She developed left shoulder pain overtime and lodged a WorkCover claim for her left shoulder injury. Ms Bakar's claim for compensation was accepted and she was paid weekly payments of compensation. Her weekly payments were later terminated because the insurer had decided that she had a current work capacity, or alternatively that her incapacity for work was not likely to continue indefinitely. Ms Bakar disputed this decision and her dispute was referred to the Accident Compensation Conciliation Service (ACCS). The ACCS later referred two medical questions to the Medical Panel.
The Panel provided the below responses to the following two questions:
Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?
Answer: In the Panel's opinion the worker is currently suffering from a residual left shoulder dysfunction following a rotator cuff injury, surgically treated, and from a rotator cuff dysfunction of the right shoulder, relevant to the claimed left shoulder injury.
Question 2: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
Answer: In the Panel's opinion the worker has a current work capacity.
Ms Bakar was capable of performing the following jobs:
School crossing supervisor
Reason: Based on the Panel's collective knowledge, experience and expertise and its clinical findings on examination of Ms Baker, the Panel concluded that she has sufficient transferable skills for the job
Small product assembler
Reason: Assessment based on the Panel's knowledge and experience of industry
Ticket seller
Reason: As above
Sandwich maker
Reason: As above
Ms Bakar was incapable of performing the following jobs:
Retail sales assistant
Reason: Ms Baker was physically unable to work with arms elevated or to undertake heavy lifting
Mail sorter
Reason: As above
Packer
Reason: Job will not allow Ms Baker to work with her arms below horizontal and with her elbows by her side
Process worker (plastic)
Reason: As above
Car park attendant
Reason: Job requires computer skills and English communication skills not possessed by Ms Bakar
Ms Bakar challenged the Panel's decision by appealing the decision to the Supreme Court arguing that the Panel did not provide adequate reasoning for its decision in relation to what she was capable of doing. The judge who heard the appeal agreed with Ms Bakar and ordered that the opinion be set aside and for the medical questions to be determined by a new Panel.
The employer, Gruma, appealed this decision. The Court of Appeal therefore had to look into the issue of whether the Panel had provided adequate reasons for its opinion.
The Court of Appeal ultimately agreed with Ms Bakar and decided that the Panel had not properly explained why Ms Bakar was capable of performing the jobs that they had said she was capable of doing. The Court of Appeal also decided that the Panel did not properly explain how Ms Bakar's medical condition was linked to her work capacity. In this case, the Court of Appeal could not be satisfied that the Panel took into account all the relevant considerations it was obliged to consider in determining Ms Bakar's work capacity.
In light of the decision in Gruma, doctors are reminded of the importance of providing their path of reasoning for answering the medical questions posed in report requests. To avoid disputes like Ms Bakar, doctors should seek to ensure that they provide sufficient details in their reports to enable any Medical Panel to adequately consider the relevant factors, often, best known by the treating practitioner.
This article was originally published in the 'Legal Check-Up', a quarterly publication for medical and allied professionals. The publication is written by the legal team at Redlich's Work Injury Lawyers and covers a variety of legal topics and issues relevant to medical and allied practice. If you would like to join our mailing list, or read previous editions of the newsletter, click here.
