The recent decision of Deputy President Snell in BGV v Waverly Council [2024] NSWPICPD 2
(11 January 2024) considered the weight to be given to medical
evidence and confirmed the application of Paric v John Holland Constructions Pty
Ltd [1985] HCA 58; 59 ALJR 844
(“Paric”).
Brief facts
The worker was a Council labourer. The worker alleged
psychological injury, being an aggravation of a pre-existing
psychological condition, with a deemed date of injury of 2 April
2020.
Liability for the injury and claim for compensation was disputed
by the respondent’s insurer on several occasions throughout
2020 and 2021; on the basis the worker’s employment was not the
main contributing factor to the injury under section 4(b) of the
Workers Compensation Act 1987 (“1987 Act”). The
insurer also asserted a defence pursuant to section 11A(1) of the
9187 Act.
The dispute proceeded to arbitral determination in the
Commission. An award was made in favour of the respondent. The
Member was not satisfied employment was the main contributing
factor to the aggravation of the worker’s underlying
condition.
In making this decision the Member observed the causes of the
deterioration in the worker’s condition were “complex and
multifactorial”, and the evidence relating to the worker’s
problems contained a “multitude” of work-related and
non-work-related stressors.
Significantly, the Member observed the worker’s medical
experts were not provided an accurate history of the personal
matters affecting the worker during the relevant time(s). The
Member said this was significant when considering the weight to be
given to the medical report(s), in the context of competing
contributing factors, including a relationship breakdown, cancer
diagnosis, and history of psychological concerns requiring
treatment. These factors had been demonstrated on the evidence
admitted in the proceedings.
In contrast, the expert medical opinion relied upon by the
respondent did have a history of these matters and their
effect on the worker. The Member observed the respondent’s
expert was the only retained expert with a history of the
relationship breakdown, which was described as a
“significant competing psychosocial
stressor”.
Ultimately, the Member determined worker’s medical case on
causation was “unpersuasive” and “must
be discounted”. The Member said, “the fact her
own experts were not appraised of extraneous but relevant matters
is, in my opinion, fatal to the [worker’s] case”.
Decision on appeal
The worker appealed against the determination of the Member,
asserting the Member misdirected himself regarding the test for
causation of injury under section 4 of the 1987 Act, erred in
finding the evidence did not demonstrate work was the main
contributing factor to the injury, as well as failing to give
adequate reasons.
The Council submitted the worker’s treating doctors and her
independent medical experts were not “fully or
satisfactorily” apprised of the contemporaneous medical
records, and were not given any factual evidence nor told anything
by the worker during the examination about non-work factors such as
the relationship breakdown.
The Council argued these doctors were not in a position
“where they could form a fully informed and considered
view as to the relevant causal contribution of work and
non-work-related matters”. Council submitted, in the language
of Paric: the doctors did not report from a “fair
climate”. Council argued the Member correctly placed less
weight on these reports in the circumstances where they had
received “materially incomplete information as to the
competing causal factors”.
Deputy President Snell confirmed the reasoning of the Member in
the first instance was consistent with the decision in Paric.
Deputy President Snell observed the effect of Paric was the
appellant’s medical case on causation was deprived of probative
force, and so the Member was not satisfied the worker’s
employment was the main contributing factor to the aggravation of a
pre-existing psychological condition.
Deputy President Snell considered the difficulty in the
proceedings was that the evidence, and particularly the medical
evidence, was not adequate to support a finding of “main
contributing factor”; due to the failure to comply with the
principles in Paric.
The appeal was dismissed and the Member’s ruling in favour
of the Council was upheld.
Learnings
Expert medical opinion is prevalent in many forms of litigation.
In workers compensation, expert medical opinion is the foundation
of claims and governs insurer decisions on eligibility. It is
common for dispute proceedings to include (at least) one
medico-legal report for each party. At the same time, the number of
dispute applications before the Commission are increasing year
after year.1
As a result, there is growing pressure on insurers and legal
practitioners to promptly arrange, prepare, and review expert
medical opinion which addresses the precise issue which has arisen
in the workers compensation claim at hand.
BGV v Waverly Council is a good reminder that dispute
proceedings in the Commission can hinge on the weight given to the
medical opinions relied upon by the parties. This decision
emphasised the importance of the medical expert providing their
opinion based on a complete and balanced history of events
contributing to the injury, in a fair factual climate.
With the soon to be introduced 500-page limit on Commission
filings,2 it will become even more important for the
relevant factual matters to be clearly and concisely set out to the
medical expert, and in turn, supported by documentary evidence. So,
if and when the expert medical opinion is relied upon in a decision
or dispute application in the Commission; the opinion can be given
appropriate weight.
Footnotes
1 There was a 16% increase in dispute
applications registered between 1 July 2022 to 30 June 2023 when
compared to the previous year (page 46): https://pi.nsw.gov.au/__data/assets/pdf_file/0008/1214954/Personal-Injury-Commission-Annual-Review-2022-23.pdf
2 https://pi.nsw.gov.au/resources/personal-injury-commission-news/2024-personal-injury-commission-news/edition-no.60
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