WCRA: MAT determination of ‘medical matters’ doesn’t preclude s.32 appeals

JJ Richards & Sons Pty Ltd v Workers’ Compensation Regulator [2016] QIRC 147

Deputy President O’Connor

In issue was whether a referral to the Medical Assessment Tribunal (the Tribunal) on a “medical matter” under s 515(1)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) precluded appeal rights in s 549 of the Act for ancillary decisions of the insurer.

The claimant was employed by JJ Richards & Sons Pty Ltd (the appellant) as a heavy truck driver, and in the performance of his duties, the claimant alleged he was required to avoid a parked car and in turning the steering wheel felt a sharp pain in his right shoulder.

The injury was referred to the Tribunal to determine injury and incapacity. The Tribunal determined the injury as an acute rupture of the right biceps tendon. The insurer accepted the claim as one arising out of or in the course of the claimant’s employment within the meaning of s 32 of the Act.

In response to the appeal, the respondent contended that section 515 of the Act and the decisions of the Industrial Court in McKinnon-Domingo v QComp [1] and WorkCover Queensland v Walch-Ryan,[2] precluded the appeal.

The appellant accepted that “medical matters” were not the subject of an appeal, but argued that the further decision by the insurer to accept the claim was not a medical matter.

The Deputy President relied on the reasoning of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[4] (‘Wingfoot‘) when considering an analogous provision under s 68(4) of the Accident Compensation Act 1985 (Vic).

The High Court said:

“What s 68(4) of the Act on that construction requires is that an opinion of a Medical Panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter.”[5]

“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [57]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[6]

And:

“The legal effect of an opinion of a Medical Panel on a medical question referred to it is that given by s 68(4) of the Act. The legal effect given by s 68(4) is not that the opinion must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act. The legal effect given by s 68(4) is that the opinion must be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. The opinion is given no greater legal effect through the operation of issue estoppel.”[7]

The Deputy President noted the decisions of P McMurdo in Zecevic v Simon Blackwood (Workers’ Compensation Regulator) & Anor,[8] and Martin J in Davidson v Blackwood [9] and found:

[38] In my view, the opinion of the Tribunal as to what constitutes a “personal injury” is by virtue of s 515 of the Act binding on the parties. The parties would, in particular, be precluded from challenging the accepted diagnosis of acute rupture of the right biceps tendon. However, notwithstanding that view, the parties would not been precluded from challenging the factual and legal issues as to whether or not the personal injury was an injury within the meaning of s 32 of the Act. That is, whether the personal injury arose out of or in the course of the workers employment; and whether the claimant’s employment was a significant contributing factor to the injury.

[39] It must be remembered that the factual background used to assist the Tribunal in the determination of the mechanics of the injury is untested.

[40] The approach adopted by the Tribunal is, in reality, no different to any independent expert opinion relied upon in a hearing before the Commission. The expert medical witness serves as a witness of opinion, asked to provide an independent opinion based on the facts of the particular case. If facts are in dispute, the expert medical witness will be asked to assume certain facts. The opinion of a particular medical expert witness is sought because of the expert’s professional experience and expertise in a particular field relevant to the case.

David Cormack – Brisbane Barrister & Mediator

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