Application to compel medical examination by WorkCover

 Ratcliffe v Raging Thunder Pty Ltd [2010] QSC 60

 

An application was bought by WorkCover pursuant to section 282 of the Workers’ Compensation and Rehabilitation Act 2003 (Qd), to compel medical examinations.

His Honour Justice Jones allowed the application and noted:

[14] The question really turns on whether a neurosurgeon brings to the issue different insights or skills which warrant the further examination. The defendant argues that the plaintiff having obtained a second opinion from Dr Campbell, neurosurgeon, now denies the defendant the right to do the same thing. The fact that the plaintiff has chosen reports from a specialist in the particular field does not of itself give a right to a defendant to seek an examination by a matching specialist. It remains a matter of whether the request is a reasonable one. Whether that is so, ultimately is a matter of discretion. Starr v National Coal Board1. A perusal of the three reports of Dr Todd reveals his view that the plaintiff had signs of “fairly significant degeneration in his lumbar spine and a pars defect at levels L4 and L5”; that the plaintiff “did sustain a musculoligamentous injury or aggravation of his pre-existing degeneration from the injury in question”; that he was totally incapacitated for work; that the injuries had stabilised; that surgical treatment was not recommended; and that some pain had a psycho-somatic basis.

[15] Dr Scott Campbell had regard to the reports of Dr Todd and also to a number of reports from the abovementioned orthopaedic surgeons and psychiatrists as well as various general practitioner reports. Dr Campbell expressed the opinion that the plaintiff “sustained an L4/5 disc protrusion as a result of the work accident”; that he suffers chronic lower back pain and right radicular symptoms; that the work accident was the sole cause of the disk protrusion; and he has “an 11% whole person impairment”; and, that he would not recommend lumbar fusion.

[16] The comparison of these reports indicates there are differences in the opinions of the specialists, particularly as to the level of the plaintiff’s impairment that might be attributed to the incident. That difference might not be particularly wide once each specialist is questioned as to the bases relied upon, but there is a sufficient difference in my view to justify the defendant making the request for an examination by a neurosurgeon rather than being forced to rely upon the opinion expressed by Dr Todd in this field of overlapping expertise.

1 (1977) 1 AllER 243

Brisbane Barrister – David Cormack

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