CITATION: State of Queensland AND Q-COMP (WC/2012/197) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

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1 CITATION: State of Queensland AND Q-COMP (WC/2012/197) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act s additional medical evidence State of Queensland AND Q-COMP (WC/2012/197) COMMISSIONER FISHER 9 November 2012 DECISION [1] The State of Queensland has applied for an order under s. 556 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) that the worker, Silvio Angelucci, submit to a medical assessment by a Psychiatrist, Dr Frank Varghese. An appointment with Dr Varghese has been reserved on 12 November 2012 for Mr Angelucci to be examined. [2] The application is strongly opposed by Q-COMP. Background [3] It is necessary to recount some background to the application. Mr Angelucci made an Application for Compensation on 17 June 2010 for a psychological injury. The application was not accepted by the insurer, WorkCover Queensland (WorkCover). Mr Angelucci sought a review of the decision and by decision dated 8 April 2011, the Review Unit, Q-COMP (Q-COMP) set aside the decision of the insurer and allowed the application for compensation. [4] On 11 May 2011 the State of Queensland appealed the decision of Q-COMP to the Queensland Industrial Relations Commission (the Commission) (Case No. WC/2011/159). An application was also made for Mr Angelucci to be medically examined by a psychiatrist pursuant to s. 556 of the Act (Case No. WC/2011/411). By decision dated 9 November 2011 the Commission as constituted found that application to be premature: State of Queensland AND Q-COMP. 1 Case No. WC/2011/159 has recently been discontinued by the State of Queensland. [5] On 23 November 2011 Mr Angelucci made a further Application for Compensation for a psychiatric injury. WorkCover allowed that application. The State of Queensland sought a review of that decision and by decision dated 4 April 2012 Q-COMP affirmed the decision of WorkCover. The State of Queensland appealed that decision to the Commission (Case No. WC/2012/164) and made this application pursuant to s. 556 of the Act for Mr Angelucci to submit to a medical examination by Dr Varghese (Case No. WC/2012/197). [6] Reports have been obtained from Dr Prior, Mr Angelucci's treating psychiatrist and Dr Arthur, the psychiatrist to whom WorkCover referred Mr Angelucci. The case for the State of Queensland [7] The case advanced by the State of Queensland is that s. 556 of the Act imposes alternative requirements, which, if either is met, allows an order to be made. The alternatives are that the condition of the worker has, or is said to have, sustained an injury relevant to the appeal: s. 556(1)(a); or the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal: s. 556(1)(b). The State of Queensland contended that both of these provisions have been met and as the section does not provide any qualifying conditions, the order should be granted. In particular, the objection of Q-COMP to the order is not a relevant consideration. Mr Angelucci is not a client of Q-COMP nor has he been joined as a party to the appeal. [8] Given that the appeal before the Commission is conducted on the basis of it being a de n ovo hearing of an adversarial kind, the State of Queensland should not be denied access to evidence which can only be obtained under the Act by the Commission making an Order. While recognising more recent psychiatric reports have been prepared by two psychiatrists, Drs Prior and Arthur, these reports did not address the questions that the State of Queensland wishes to raise. The State of Queensland submitted that it wanted to explore the issues raised in the material it submitted as part of the Q-COMP review but which in the Review decision were dealt with together. These matters are identified in the further Affidavit of Jacqueline Hamilton, Acting Assistant Crown Solicitor, sworn on 25 September 2012, where she said: 1 State of Queensland AND Q-COMP (W/2011/411) - Decision <

2 2 "5. As Solicitor for the Applicant, I am of the opinion that the abovementioned reports of Dr Prior and Dr Arthur do not address in any substantive way, or at all the critical issues in proceedings WC/2012/164. No attempt has been made by the Respondent to distinguish between the impact upon the Worker's psychological condition of:- (a) (b) the management action of the Applicant in declining to offer the Worker a further contract; and the management action comprising the manner and means by which that decision was later conveyed to the Worker. 6. In my opinion, the critical issues in proceedings WC/2012/164 ("the Issues") include the following: (a) the respective contributions and/or degrees of causation of the Worker's injury that can be attributed to: i. the fact of the non-renewal of the Worker's contract of employment on 2 November 2011 on the one hand; and ii. the manner in which the news of the non-renewal was communicated to the Worker on that day on the other hand; and (b) the degree of probability that, in light of the personality type of the Worker, the injury suffered by the Worker would have arisen as a consequence of the fact of the non-renewal of the Worker's contract, irrespective of the manner in which that news was conveyed to him." [9] In respect of paragraph 6, the State of Queensland clarified, in response to a question from the Commission, that Dr Varghese was not being asked to attribute percentages of causation, rather, to tease out and separately consider the two issues mentioned in paragraph 6. (a) above. In the submission of the State of Queensland these are separate management actions which need to be considered separately. The State of Queensland recognised that s. 32(5)(a) of the Act requires consideration of a composite phrase, that is whether reasonable management action was taken in a reasonable way, however, it comprises two elements, each of which requires consideration. [10] The State of Queensland submitted that it was entitled to its own evidence and not be limited to cross-examination of witnesses called by Q-COMP. It wanted the opportunity to obtain its own evidence and ask the medical practitioner the questions it considered relevant to the conduct of its case. Further, it wanted Mr Angelucci examined afresh, that is, by a doctor who did not have a relationship with Mr Angelucci and who had not previously examined him. In particular, the State of Queensland submitted that the examination should take place by a medical practitioner who had not previously been given an incorrect history. [11] The State of Queensland noted that in his second report Dr Arthur considered that Mr Angelucci would find a further psychiatric examination unpleasant but he would not suffer a deterioration in his mental state. Dr Prior considered that Mr Angelucci might experience some temporary aggravation of his anxiety levels were he to undergo another psychiatric examination however this would be temporary. The case for Q-COMP [12] Put succinctly, the case for Q-COMP is that the medical reports of Drs Arthur and Prior address the issues that the State of Queensland wishes to raise and thus the request for further medical examination is unnecessary. Should the State of Queensland be dissatisfied with the information provided by the two psychiatrists there has been no attempt to comply with the sentiments expressed by the Commission in its decision of 9 November 2011, that is, to seek further information from the relevant practitioners. In that decision the Commission said that were the practitioners unable or unwilling to provide further information or their responses did not address issues relevant to the appeal then the application for another medical examination would be further considered. In the absence of any such attempt being made in this case the application for a further medical examination is considered to be unnecessary. [13] Q-COMP also expressed concern that the State of Queensland was seeking information irrelevant to the appeal. Ms Hamilton in her Affidavit of 16 May 2012 states: "20. Neither Dr Arthur nor Dr Morris make any distinction, in their report/certificates, between the effect that the content of the news (that a further contract was not to be offered) had upon the causation of the Worker's alleged injury, as distinct from the effect of the manner in which that news was communicated by the Applicant." (Note: Dr Morris is the General Practitioner.)

3 3 [14] Q-COMP submitted that the issue of causation and an objective consideration of causation are both irrelevant to a statutory claim. The question for the Commission is to determine whether or not workplace factors were a "significant contributing factor to the injury" and this is by way of subjective analysis from the worker's perspective: Q-COMP v Foote 2 and Leigh Sheridan v Q-COMP. 3 [15] Q-COMP also referred the Commission to decisions of the Supreme Court of Queensland which considered requests for further medical examinations. In particular reference was made to the decision in Woolworths (Qld) P/L v Berry-Porter, 4 where Cullinane J said: "[27] As I have said I do not accept that the Applicant has an unqualified right to a further examination by a psychiatrist and by an orthopaedic specialist and that earlier examinations are irrelevant to that question." [16] Q-COMP submitted that there were three pre-requisites to obtaining a further medical examination: (i) (ii) (iii) There is a legitimate enquiry capable of being addressed by specialist opinion. Q-COMP submitted that the inquiry is not proper because it relates to a hypothetical situation of the delivery of a certain decision independently of the reasonableness of the way in which it was done. The Applicant has not approached the medical practitioners to seek further information and that request has been rebuffed. The Applicant must satisfy the Commission that it is not a broad ranging request. Q-COMP submitted that the issues have been identified and addressed by two psychiatrists, Drs Arthur and Prior. [17] However, were the Commission to favourably consider the application, then a panel of three doctors should be provided by the State of Queensland. Mr Angelucci should not be required to attend the only nominated doctor. In the submission of Q-COMP such a request raises issues about the independence of Dr Varghese. Consideration [18] The State of Queensland has made the application for medical examination so that it can have (hopefully) medical evidence to support the case it wishes to run. It does not consider that it should be left to cross-examine medical witnesses that will be called by Q-COMP. Further, the State of Queensland does not accept that the existing medical reports address the questions that are relevant to the case it wants to conduct and wishes to have the opportunity to be able to ask those questions of a specialist of its own choosing. Unlike the specialists who have currently provided reports, the specialist selected by the State of Queensland would have had no previous history with Mr Angelucci and would be apprised of his relevant medical history before the examination. For all of these reasons the State of Queensland seeks that the Commission make an order requiring Mr Angelucci to submit to another, independent medical examination. [19] One of the key arguments made by the State of Queensland in support of its application is that only one of the two pre-conditions in s. 556(1) of the Act has to be met for the order to be made and the section does not place any qualifying conditions on the Commission in determining whether to make the order. The Commission accepts that in this case both of the pre-conditions in s. 556(1) have been met. However, the Commission does not accept that just because one (or both) has been met that an Applicant automatically jumps the hurdle and an Order is made. The Commission considers that the views of Cullinane J are apposite to this case, that is, that an applicant does not have an unqualified right to a further examination and, importantly, the applicant must have an acceptable reason for the request: ibid. [20] In considering the application the Commission has taken into account the history of medical assessments that have occurred with respect to this application for compensation. Mr Angelucci has already been examined by an independent specialist, Dr Arthur. The first report from Dr Arthur was obtained by WorkCover and the second by Q-COMP. At the time of the assessment not all of Mr Angelucci's relevant medical history was disclosed. It has since been disclosed and in his later report Dr Arthur expressed his opinion that the disclosed history did not particularly alter his views about the nature of the injury and its causation. Dr Arthur did not examine Mr Angelucci again for the purposes of providing that second report. 2 Q-COMP v Robin Jeffrey Foote [2007] QIC Leigh Sheridan v Q-COMP [2009] 191 QGIG Woolworths (Qld) P/L v Berry-Porter [2002] QSC 360

4 4 [21] In addition Mr Angelucci has been treated by another psychiatrist, Dr Prior. Q-COMP sought a report from Dr Prior after it noted certain queries within the application by the State of Queensland for Mr Angelucci to submit to a medical examination. Mr Angelucci was not required to be examined by Dr Prior for the purposes of the report as he was Mr Angelucci's treating psychiatrist. [22] The Commission would not lightly require a worker to submit to a further medical examination. Such examinations are intrusive and likely to cause anguish. The Commission has noted the views of Drs Arthur and Prior as expressed in their recent reports that there is little prospect of Mr Angelucci suffering any ongoing harm were he be required to submit to another psychiatric examination. Although this is not a factor in support of the granting of the application, any prospect of enduring adverse consequences would have militated against a decision in favour of the State of Queensland. The Commission is of the view that the making of the order sought would not require Mr Angelucci to submit to frequent, multiple examinations about which Cullinane J expressed concern as Mr Angelucci has only been examined for the purposes of this case once by Dr Arthur on 2 December [23] I have considered whether the issues the State of Queensland wishes to put to Dr Varghese, as identified in the further affidavit of Ms Hamilton, are relevant and appropriate. Q-COMP has expressed concern about them in its submissions and also foreshadowed that objection may be taken to some matters in the hearing were the examination be allowed to proceed in the manner sought. The nature of the case to be conducted by the State of Queensland appears to be unusual, however, my concerns dissipated after hearing the explanations made by its Counsel in response to a question asked by the Commission. The concerns raised by Q-COMP are only foreshadowed at this point and are not sufficient to cause the Commission to deny the Applicant from pursing its proposed case. [24] The questions that the State of Queensland sees as relevant to the conduct of its case have not been put to Dr Arthur. The Commission has considered whether those questions should be put to him but has decided that, in the circumstances of this case, it is not the most prudent course of action. In my view the State of Queensland is entitled to have confidence in the medical examination process 5 and it is clear that that confidence does not exist given that certain medical history was not disclosed at the time of Dr Arthur's examination. In expressing these views the Commission does not cast any doubt on the expertise of Dr Arthur. [25] To be limited to asking the questions it considers relevant to its case in cross-examination of Dr Arthur as the only independent specialist would hamstring the State of Queensland in the conduct of its case. This could be all the more problematic if the State of Queensland faced the prospect of cross-examining a witness who has also provided an opinion to it on matters relevant to its case. In contrast, a further independent medical examination ensures that Mr Angelucci can be examined afresh, in the light of medical evidence the State of Queensland considers relevant and in the absence of any opinion having previously been expressed. [26] The State of Queensland will be bound by the report it obtains and required to provide it to Q-COMP. There is no guarantee that the report will be in its favour but that is the risk of seeking a second, independent opinion. The report may however assist the State of Queensland to expand upon its case as it was put to Q-COMP in the review process. [27] In light of the foregoing the Commission considers that the State of Queensland has established an acceptable reason for an order to be made requiring Mr Angelucci to submit to another medical examination. [28] Q-COMP has expressed concern about the independence of Dr Varghese given that he has been selected by the State of Queensland and a panel of three doctors has not been offered. However, as the State of Queensland said in its reply submissions, neither WorkCover nor Q-COMP offered a panel of three doctors to Mr Angelucci from which he could choose a preferred specialist. Unlike s. 282 of the Act, which was the section under consideration in the Supreme Court of Queensland cases provided by Q-COMP, s. 556 of the Act does not requires that a panel of doctors be provided. It may be appropriate to adopt such a course in other matters but is not one that I have considered necessary in the particular circumstances of this case. [29] Having met the statutory test and having established an acceptable reason for the request the Commission has decided to exercise its discretion to make the following orders: 1. Pursuant to s. 556 of the Workers' Compensation and Rehabilitation Act (Qld) Silvio Angelucci submit to a medical examination with Dr Frank Varghese, at a time to be determined by the Applicant at the following address: 5 Gray v Hopcroft & Anor [2000] QCA 144.

5 5 Suite 55 Level 5 Silverton Place 101 Wickham Terrace Brisbane. Qld The Applicant is to provide reasonable notice to Mr Angelucci of the date and time of the appointment. 3. The costs of the Mr Angelucci's medical examination with Dr Varghese, including his reasonable travel costs to and from the medical examination, be paid by the Applicant; 4. If, without reasonable excuse, Mr Angelucci does not attend the medical examination with Dr Varghese at the said time and place, he be required to reimburse the Applicant for costs reasonably incurred by it in relation to the medical examination; 5. That the report of Dr Varghese be provided to Q-COMP within seven days of its receipt; and 6. The parties' costs of this application be reserved to the Member hearing the Appeal. [29] The Commission has endeavoured to give an early decision on the application but because of other hearings has not been able to release this decision in sufficient time for the appointment date of 12 November 2012 to be met. In any event I consider that it is only fair that Mr Angelucci receive reasonable notice of an appointment date. [30] Order Accordingly. G.K. FISHER, Commissioner. Hearing Details: November Released: Appearances: Mr A.K. Herbert, Counsel, instructed by Crown Solicitor for the State of Queensland. Mr S.P. Sapsford, Counsel instructed by Ms R. Jamieson, Q-COMP.