In the following alert, Partner Robert Tidbury and Associate Claire Bruggemann discuss the recent decision of Teys Australia Meat Group Pty Ltd v Flett [2015] QDC 177 in which an application made by the self-insurer to have the plaintiff submit to an independent medical examination by one of a panel of three spinal surgeons was dismissed.
The facts
The plaintiff had been examined by a neurosurgeon and two orthopaedic surgeons during his statutory claim. Both orthopaedic surgeons recommended the plaintiff have surgery, however, the plaintiff declined.
The second orthopaedic surgeon stated that if the plaintiff did not wish to have surgery, then the claimant's lumbar spine condition would be considered stable and stationary.
The self-insurer wanted to investigate whether the plaintiff's condition would be improved and to what extent, if he were to have the recommended surgery. In order to obtain this evidence, the self-insurer requested the plaintiff be examined by one of a panel of three spinal surgeons.
The plaintiff argued that the request was unreasonable or unnecessarily repetitious and that the self-insurer could obtain this evidence from the second orthopaedic surgeon who had previously examined him and provided a report to the self insurer during the statutory claim.
The self-insurer argued that the orthopaedic surgeon, who previously examined the plaintiff, no longer performed spinal surgery and therefore submitted the panel of three spinal surgeons.
By contrast, the plaintiff submitted that the orthopaedic surgeon who had previously examined him could provide a report to the respondent on the claimant's prognosis should he undergo surgery because that orthopaedic surgeon:
- had previously performed spinal surgery for 19 years; and
- continues to see patients who have undergone surgical treatment for spinal injuries.
The self-insurer did not challenge the plaintiff's evidence and did not provide evidence that the doctors submitted on the panel would be in a better position to comment on the plaintiff's prognosis following surgical treatment than the orthopaedic surgeon who had previously examined him.
In the absence of any such evidence by the self-insurer, Judge Rackemann considered the request to be unreasonable or unnecessarily repetitious and dismissed the application.
Key point
- If the claimant refuses to undergo a medical examination by a doctor selected from a panel submitted by the employer/insurer on the basis that his or her examination by another doctor is unreasonable or repetitious, it is important the employer/insurer produces evidence demonstrating the specific additional expertise of the doctors in its panel which is lacking on the part of the doctor who previously examined the claimant in the statutory claim.
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