Bowskill J reiterates that medical reports must be read as a whole and it is ‘artificial and inappropriate’ to pick and choose the more favourable parts of a report.
In issue
The applicant earlier requested an assessment under section 179 of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) to determine whether he had sustained a degree of permanent impairment (DPI) from an accepted injury. A report issued by an occupational physician, Dr Cunneen, determined a 90% DPI, but attributed 100% of the impairment to a pre-existing injury, rather than the workplace injury.
In the present application the applicant sought orders that WorkCover issue a notice of assessment stating a degree of impairment of 90%, or alternatively, one directing WorkCover to issue a notice of assessment under section 185 of the WCRA.
The background
The applicant suffered a stroke at work and applied for workers’ compensation on the basis that work-related stress was a significant contributing factor. WorkCover initially refused the application, but it was ultimately accepted by the Workers’ Compensation Regulator.
WorkCover conducted further enquiries and obtained medical evidence to the effect that the stroke was caused by a pre-existing condition, not work stress. WorkCover purported to decide pursuant to section 168 of the WCRA to terminate the worker’s entitlement to workers’ compensation. The applicant successfully applied for judicial review of that decision, which was set aside.
The applicant then requested an assessment of permanent impairment and WorkCover sought the Dr Cunneen report, in which the doctor opined that the entirety of the applicant’s 90% whole person impairment was attributable to chronically untreated and documented hypertension, and 0% to workplace stress. WorkCover issued a notice of assessment reflecting a 0% DPI and advised the applicant that he had no entitlement to lump sum compensation. It also advised him that it would cease making compensation payments.
The applicant applied for a statutory order of review of those decisions, but WorkCover repealed both decisions and proposed to obtain a further assessment (by a new doctor) after which it would issue a fresh notice of assessment.
The applicant did not want a further assessment and sought to compel WorkCover to issue a notice of assessment reflecting the 90% DPI assessed by Dr Cunneen, essentially by ‘cherry picking’ the report to the extent that the impairment pertains to a stroke condition (which had already been accepted as a work-related injury), and leaving aside Dr Cunneen’s opinion as to the cause of that condition. The applicant sought that order under s30 of the Judicial Review Act 1991.
The decision
The Court determined that s30 of the Judicial Review Act was about the powers of the Court in relation to applications for review and, as there was no decision to review in the present instance (both WorkCover decisions having been repealed) those powers were not enlivened. In any event Her Honour was not persuaded that it was appropriate to grant either order sought by the applicant, and the application was dismissed.
Implications for you
The case reiterates that medical reports ought be read as a whole for context, and it is not appropriate to hone in on sections that favour an argument while disregarding the balance of the report, or where it might introduce inconsistency to do so.
