Lambert v ACT Nursing Services Pty Ltd [2007] ACTSC 86

2. The appellant also appeals against the magistrate's order dismissing her application for the proceedings to be listed for hearing.**

**3. On 29 December 2005, the appellant injured her left knee and made a claim under the Act for the payment of compensation for that injury. Compensation was paid but the workers compensation insurer gave her notice, as required by Workers Compensation Regulation 2002 (ACT) (the Regulation), that she was to be examined by a medical specialist nominated by the insurer. The appellant presented as a consequence of receiving that notice.

4. Following a report by the medical specialist, notice of termination of workers compensation payments was given on 30 March 2006 for payments to be made up to 25 May 2006. On 7 April 2006, the appellant made an application for arbitration with respect to the respondent's liability for weekly compensation, medical treatment, damage and other costs and compensation for permanent injuries. Some two months later, by letter dated 14 June 2006, the solicitors for the respondent wrote to the solicitors for the appellant advising that arrangements had been made for the appellant to be medically examined by two nominated orthopaedic surgeons. One of those nominated had been the medical specialist who had examined the appellant at the insurer's request. The solicitors for the appellant objected on the appellant's behalf both as to having to be examined by two doctors of an identical specialty and the fact that the notice requirements of the Regulation for specialist medical examination had not been complied with.

5. The respondent's solicitors relied upon what they said was a well established practice in workers compensation matters for respondents to be permitted to have a claimant medically examined. Accordingly, they said that unless and until the appellant agreed to attend the medical examinations they had arranged, they would oppose the matter being listed for hearing.

6. The matter came before the magistrate on the respondent's application that the proceedings be stayed until the medical examinations took place which was heard at the same time as the appellant's application for the matter to proceed to hearing.**

7. This appeal raises the issue of whether compliance is required with Part 3 of the Regulation where a respondent's solicitors seek to have a claimant medically examined in the course of preparing proceedings for arbitration of the claim. There is a subsidiary issue as to whether, in the circumstances of this case, the arrangement of examinations by two medical practitioners in the same specialty was unreasonable.

8. Section 223(2) of the Act provides that the Executive may make regulations for the Act and that a regulation may make provision in relation to:

(a) medical assessments of injured workers;

(b) the use of medical specialists in relation to compensable injuries; ...

9. The Regulation provides specifically for the methodology to be used for medical assessments under the Act. Section 8 of the Regulation provides:

8 Meaning of evidence-based methodology

In this regulation:

evidence-based methodology _means the application by a doctor of the doctor's clinical expertise, and any relevant approved medical guidelines or clinically relevant research, to - _

(a) identify the aetiology of an injured worker's injury; and

(b) diagnose the injury; and

(c) give a prognosis for the injury; and

(d) make recommendations about medical treatment for the injury.

10. Part 3 of the Regulation then sets out how medical assessments must be done. Part 3 provides:

Part 3 Medical assessments

Division 3.1 How medical assessments must be done

9 Using evidence-based methodology

(1) A doctor who does a medical assessment of an injured worker must do the assessment using evidence-based methodology.

Note The Act, s 118 (2) provides that a medical certificate required to accompany a claim for weekly compensation must comply with the requirements for medical assessments under the regulations.

If s 118 (2) is not complied with, for example, if a medical certificate about an injured worker is deficient because it does not refer to an approved medical guideline or clinically relevant research for that type of injury, under the Act, s 119 the insurer may tell the worker about the deficiency. The worker's claim is not considered to have been made until the deficiency is fixed.

If the insurer does not tell a worker about a deficiency, the claim is taken to comply with s 118 (2) (see the Act, s 119 (3)).

(2) The doctor must record the results of the assessment, including the following matters:

(a) the aetiology of the worker's injury;

(b) the diagnosis of the injury;

(c) the prognosis for the injury;

(d) the recommended medical treatment for the injury.

(3) However, for a later medical assessment of an injured worker, the doctor who does the assessment need record a matter mentioned in subsection (2) only if the doctor considers that there has been a change in the matter.

(4) In this section:

initial medical assessment, of an injured worker, means the first medical assessment by the worker's doctor for a medical certificate mentioned in the Act, section 116 (2) (Making claim for compensation).

later medical assessment_, of an injured worker, means a medical assessment other than - _

(a) an initial or second medical assessment of the worker; or

(b) if the worker's nominated treating doctor is replaced by another nominated treating doctor - the first medical assessment of the worker by the new nominated treating doctor.

second medical assessment means an assessment mentioned in the Act, section 72 (Second assessments).

Division 3.2 Medical specialists

1. Assessment by medical specialist - request by other than nominated treating doctor

(1) This section does not apply to a request by an injured worker's nominated treating doctor for a medical assessment of the worker by a medical specialist.

(2) The following (the requesting person) may request a medical assessment of an injured worker by a medical specialist:

(a) the worker;

(b) the worker's lawyer;

(c) the worker's employer;

(d) the employer's insurer.

_(3) At least 2 weeks before the day of the medical assessment, written notice of the request must be given - _

(a) if the request is made by the worker or the worker's lawyer - to the worker's employer and the employer's insurer; or

(b) if the request is made by the worker's employer or the employer's insurer - to the worker and the worker's lawyer.

(4) Subsection (3) does not prevent a medical assessment of the worker happening with less than the 2 weeks notice if the parties agree to the shorter notice.

_(5) The notice must state - _

(a) the reasons for the request (including a brief description of any particular thing that led to the request); and

(b) why the medical specialist is the appropriate specialist to do the medical assessment; and

(c) which of the following matters are to be assessed in relation to the injury:

(i) aetiology;

(ii) diagnosis;

(iii) prognosis;

(iv) recommended medical treatment.

Example for par (a)

An insurer disagrees with an injured worker's nominated treating doctor's assessment that the worker has suffered a relapse, and needs more time off work. The insurer considers that the time off does not relate to the injury.

Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(6) The requesting person, and the people to whom the requesting person must give notice under subsection (3), must give all medical evidence about the injured worker to the medical specialist at least 2 working days before the day of the medical assessment.

11 Specialist's report about assessment

(1) A medical specialist assessing an injured worker must, when asked by someone (the requesting person) under section 10(2), prepare a report about the medical assessment.

_(2) If the medical specialist's assessment differs from the medical evidence about the injured worker, the report must state - _

(a) how the assessment differs and why; and

(b) why the medical specialist's assessment is preferable.

(3) If there is no difference between the medical specialist's assessment and the medical evidence, the report must say there is no difference.

(4) The requesting person must give a copy of the report to the people to whom the requesting person must give notice under section 10 (3) within 5 working days after the day the report is given to the requesting person.

Note An injured worker's nominated treating doctor may adopt (completely or partly) a medical specialist's assessment about treatment for the worker's treatment.

12 Medical specialist as new nominated treating doctor

(1) This section applies if the nominated treating doctor (the treating doctor) for an injured worker considers it appropriate that a medical specialist becomes the nominated treating doctor for the worker, and the worker agrees.

(2) The treating doctor may ask the medical specialist, in writing, to become the nominated treating doctor for the worker.

(3) If the medical specialist agrees in writing, the medical specialist becomes the nominated treating doctor for the worker instead of the treating doctor.

11. "Medical Specialist" is defined in the dictionary to the Regulation as meaning:

... _a doctor - _

(a) with specialist qualifications and experience in medicine recognised by the relevant Australian specialist medical college; and

(b) who practises within the specialty.

12. The Explanatory Statement for the Regulation declares that:

Part 3 outlines the method of medical assessment to be used by all medical practitioners under the scheme and the use of specialists for treatment purposes or reporting purposes.

13. Sections 10 to 12 of the Regulation are referred to in the Explanatory Statement in the following way:

Regulation 10 distinguishes between medical assessments by specialists that are referred by a person's treating doctor and those that are referred by a worker, employer or their representatives.

This provision is made to distinguish between assessments that are conducted by specialists who are assisting the treating doctor to treat the patient, and assessments that are conducted to confirm or challenge a person's medical condition. This separation of a treatment stream and a reporting stream is intended to prevent the stagnation of medical treatment of an injured person due to litigious factors.

The notice required by regulation 10 ensures that the reasons for any referral to a specialist to confirm or challenge a person's medical condition is known by all parties. The imperative to provide notices also dissuades all parties from 'doctor shopping'.

Any medical assessments conducted by medical specialists must be consistent with evidence based methodology.

Regulation 11 states that reports made for the purpose of confirmation or challenge must identify any differences between the specialist's assessment and any assessments conducted by other doctors of the person's injury. The specialist's report must also outline the specialist's medical assessment of the person, and why the specialist prefers their own assessment.

Copies of any and all medical specialist reports for the purpose of confirmation or challenge must be disclosed by the requesting party to the other parties mentioned in regulation 10.

Regulation 12 enables the treating doctor to refer the injured worker to a specialist for treatment. Provided the worker agrees, the medical specialist becomes the worker's treating doctor. The first assessment by the new treating doctor (the medical specialist) must address the four categories of medical assessment (aetiology, diagnosis, prognosis and treatment) using evidence based methodology.

**14. It seems to me quite clear from the Explanatory Statement that the purpose of the Regulation is to deal with all medical assessments that might be made of a claimant and that the Regulation expressly extends to medical assessments that are to confirm or challenge a person's medical condition. The proposition put on behalf of the respondent that the Regulation ceases to have effect once there is a dispute as to compensation, and that proceedings concerning that dispute are in contemplation, would not give effect to what is a patently clear expression of purpose in the opening paragraph of the part of the Explanatory Statement dealing with medical assessments.

15. Other aspects of the Regulation taken in conjunction with the Explanatory Statement seem to me to make it quite clear that the Regulation is dealing comprehensively with any specialist medical report required in respect of the worker.

16. Section 10 of the Regulation not only restricts who may request such an assessment of a worker's medical condition, but provides for notice of reasons for the request to be given. That requirement is said to be there to dissuade all parties from 'doctor shopping'. In other words, going from doctor to doctor in the hope of a report more favourable to either party's case.

17. Moreover, s 11 of the Regulation contains a specific prescription as to certain matters that a specialist's report is obliged to consider. Those matters include the identification of any difference between the assessment contained in the report and the medical records of the worker. The Explanatory Statement states that this will identify any differences between the specialist's assessment and any assessments conducted by other doctors of the person's injury. As well, it says that the specialist must say why the specialist prefers their own assessment to any other. Such a requirement is quite incompatible with the freedom that a medical report would generally permit in the expression of opinion.

18. Finally, there is the requirement in s 11(4) of the Regulation for there to be disclosure to those to whom the notice requiring the report has been given. In other words, the other party.

19. I considered matters concerning this Regulation in Smith Management Concepts Pty Ltd v Truong [2006] ACTSC 16. That is a case where notice had been given under s 10(3) of the Regulation by the employer's insurer but the insurer's solicitors claimed that the report, when prepared, would be the subject of a claim for legal professional privilege.

20. That case was sent back to the Special Magistrate for further consideration as a medical assessment given as a consequence of a notice under the Regulation could neither satisfy the requirement that a communication be confidential nor the requirement that the dominant purpose of seeking the report was that of obtaining relevant legal services so as to attract a claim for legal professional privilege (see Truong (supra) at [17]).

21. My decision in Truong was predicated on the Regulation adopting a very specific regime governing the obtaining of medical assessments in workers compensation matters and that if medical assessments were obtained in that way, issues of legal professional privilege were unlikely to arise. In my view, the Regulation does not expressly, or by implication, abrogate, derogate from or operate inconsistently with fundamental legal principles embodied in legal professional privilege or the client professional privilege under the Evidence Act 1995 (Cth). It operates on an occasion before those principles might apply. As I said in Truong, one of the criteria for the existence of the privilege is that the communication be confidential. By removing the confidentiality of the occasion of medical assessment in the circumstances set out in the Regulation, the privilege lacks a key criteria for its existence.

22. In personal injury cases, it was earlier recognised by the courts that there was no direct authority by which plaintiffs could be required to submit to a medical examination. As Keith Mason QC (now President of the New South Wales Court of Appeal) observes in an article 'The Inherent Jurisdiction of the Court' (1983) 57 ALJ 449 at 451, that "led to rules of court being made to allow this highly desirable procedure".

23. In referring to rules of court being made, he says (at 451):**

_Yet authoritative and more recent decisions of the English courts reached the same position by reference to the Court's inherent power, since a plaintiff's refusal of a reasonable request [to be medically examined] "is such as to prevent the just determination of a cause" (_Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 per Lord Denning MR). The judges have readily acknowledged that this is using the Court's jurisdiction to achieve indirectly a result that could not be achieved by direct order. (See eg Davies LJ in Lane v Willis [1972] 1 WLR 326 at 332.)

24. At the time that this matter was before the magistrate as arbitrator, Rule 192 of the Magistrates Court (Civil Jurisdiction) Rules 2004 (ACT) provided:

(a) at any time by the court on the conditions that the court consider just; or

(b) in accordance with these rules.

Further, in respect of the procedure or arbitration, s 56(2) of the Regulation provides:

The Magistrates Court or a committee may decide its own procedures.

25. If, as in the present case, an arbitrator has the power to stay (and that may be now considered in light of the fact that Rule 3953 of the Court Procedures Rules 2006, which replaced the Magistrates Court (Civil Jurisdiction) Rules 2004, does not expressly refer to such a power) the power should be exercised having regard to the principles that govern the exercise of such a power in circumstances like the present case.

Principles governing a stay of arbitration of proceedings in this case

26. Those principles exemplified by the approach of the English courts to which I have referred are grounded in concepts of fairness to each of the parties involved. In Clarke v Martlew and Anor (1973) 1 QB 58, Lord Denning MR (with whom Cairns LJ agreed) pointed out that in a case where there is no provision made in the Rules of Court for the medical examination of a plaintiff, a defendant may only seek a medical examination of that plaintiff as a privilege. Lord Denning points out (at 62) that:

So by a series of cases starting with Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 and ending with Lane v Willis [1972] 1 WLR 326, the courts have held that if a plaintiff unreasonably refuses to be medically examined at the request of the defendant, then his action will be stayed until that medical examination is held. That is only fair to the defendant. He should be able to check the plaintiff's condition and his injuries so as to be able to assess the damages properly.

27. Having stated that general principle which is predicated upon a plaintiff, as a general proposition, not being required to comply with a defendant's request for a medical examination, Lord Denning further said (at 63):

It is the defendant who seeks a privilege - he seeks to have a medical examination of the plaintiff - and I do not think he should have this privilege unless he is prepared to act fairly by it. Fairness requires that he should show it to the plaintiff. In all the cases where the courts have allowed the defendant to have a medical examination of the plaintiff - and ordered a stay until it is given - it has been assumed that the defendant will show the report to the plaintiff.

28. This requirement of fairness to each of the parties caused the English Court of Appeal in Megarity v D J Ryan & Sons Ltd [1980] 2 All ER 832 to modify the effect of Lord Denning's decision in Clarke v Martlew (supra). The Rules of Court had been amended since that decision and the relevant Rules required disclosure by either party of such expert evidence as the party proposed to rely upon for the purposes of the hearing before the court. The amendment to the Rules caused Roskill LJ (at 836) to observe:

The plaintiff is, as I see it, under no obligation, even at the present day, to disclose a report in his possession unfavourable to himself; and yet if the argument of counsel for the plaintiff be right, he could, as a condition of submitting to a medical examination, impose on a defendant an obligation to disclose the resulting medical report in the hope that the defendant's report, otherwise plainly a privilege document, would reveal in these circumstances something more favourable to him than his own medical report would reveal. That seems to me to be entirely wrong.

**29. Similarly, Ormrod LJ (at 836) observed that the question was whether in litigation it is fair and just not only to the plaintiff, but to both sides, to know what reports might say. Ormrod LJ was concerned that if one party had to disclose, then so should the other. This, he regarded, was the requirement of fairness.

30. In Neill v Commonwealth (unreported, 1982, ACTSC, BC 8200148, 9 September 1982), Blackburn CJ granted a stay in circumstances where a plaintiff claiming damages for personal injury refused a medical examination by the defendant's doctor except on condition that a copy of the doctor's report be furnished. After citing from the judgments of both Roskill LJ and Ormrod LJ, Blackburn CJ said:**

It may be arguable that all medical reports, whether to be used at the trial or not, should be discoverable on both sides. But until that is the rule, I do not think that the plaintiff's attitude is fair.

**31. I consider that the effect of the Regulation is to now require the disclosure of medical assessments to both sides. That being the case, I think that the fair position is, where there are provisions like those contained in Part 3 of the Regulation, that there be mutual disclosure. That is what s 11(4) of the Regulation achieves.

32. My attention was drawn to Rule 3928 of the Court Procedures Rules 2006. That Rule provides:**

3928 Arbitration - service of medical reports

(MCPD 1/2000, par 18, 19 and 20)

_(1) Each party to an arbitration must, not later than 28 days before the hearing date for the arbitration, serve on each other party to the arbitration a copy of all medical reports then available to the party - _

(a) on which the party intends to rely at the arbitration; or

(b) obtained from a doctor whom the party intends to call at the arbitration.

Note Rule 6351 (Time - extending and shortening by court order) provides for the extending of time by the court.

(2) If a party serves a medical report from a doctor, the party must serve every medical report from that doctor obtained by the party.

_(3) If, after serving a medical report under subrule (1), a party obtains a further report from the same doctor, the party - _

(a) must serve the further report not later than 3 days after the day the party obtains the report; or

(b) must not serve the report and tell the other parties that the party does not intend to rely on the reports of that doctor already served.

_(4) A doctor's report must not be tendered, and is not admissible, in the arbitration unless it has been served in accordance with this rule, except with - _

(a) the court's leave; or

(b) the agreement of all parties to the arbitration.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.

(5) This rule applies subject to any order of the court.

**33. The predecessor of that Rule was Practice Direction No. 1 of 2000 paras 18-23. Neither the Rule nor the Practice Direction advert to the Regulation. It seems to me that the effect of the Regulation makes much of what is comprised in the Civil Procedures Rules and the former Practice Direction unnecessary. The respondent seems to accept that the Civil Procedures Rules and the Regulations are complementary schemes. I am prepared to regard them as such. However, I consider that the requirement in s 11(4) of the Regulations concerning the giving of a copy of the report, makes much of what is comprised in the Rules and the former Practice Direction largely superfluous.

34. A point was made by the respondent that the Regulation contained no sanction as far as the conduct of the arbitration proceedings were concerned if a worker refused to attend for a medical assessment. However, in my view, such a case would be met by adopting the approach of the English courts to this circumstance. Such an attitude on a plaintiff's part would simply make it unfair to proceed against the defendant.

35. From the authorities that I have cited, there is no doubt that a test of fairness to each party must motivate the decision in this case. It seems to me that on any view of the Regulation, the appellant, as a worker, is obliged to provide all medical assessments obtained to the respondent employer. I see no reason in fairness why the corollary should not be so and that all medical assessments obtained by a defendant employer should be provided to the applicant for compensation.**

Proposed examination by two doctors of the same speciality

36. The remaining issue is whether the appellant could complain that it was unreasonable to require her to be examined by two doctors of an identical speciality. The magistrate regarded this as a question of abuse of process which he thought did not arise at this point. He said that:

There may be sound medical reasons concerning areas of a specialist's expertise within orthopaedics why the employer wishes to have the worker examined by the two nominated specialists.

37. As I am of the view that such an examination can only take place under the regime set by the Regulation, that would invoke the requirement for notice provided for in s 10(3). Section 10(5) requires the reasons for the request to be stated in the notice. It would, therefore, not be a ground for speculation as to the reasons for the request that the magistrate felt necessary to embark upon. I consider that it is unnecessary that I comment further on the question of whether such a request is reasonable or unreasonable as this can no doubt be determined when the reasons for such a request are given.

38. I allow the appeal. I set aside the order staying the proceedings for arbitration. I also set aside the order dismissing the appellant's application before the arbitrator for the proceedings to be listed for hearing. The respondent should pay the appellant's costs of the appeal.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: Blumers Personal Injury Lawyers