Pirie v State of New South Wales (NSW Police Force) (NSWPICPD 2022)

Link to Decision

Key Takeaways

In this case, the Acting Deputy President found that if a matter is to be referred to a Medical Assessor (MA) it may be possible for the reports of more than one Independent Medical Examiner (IME) to be relied upon.

Brief Facts

The worker sustained a right knee injury at work on 17 July 2015. On 4 June 2020, he made a lump sum compensation claim for 20% WPI. He was examined, at the request of the insurer, by Dr Panjratan, who assessed 14% WPI. The insurer offered 14% WPI in response to the claim. An ARD was filed and subsequently discontinued to rectify issues with the pleadings.

The worker made a further claim for lump sum compensation on 5 November 2020. A re-examination was arranged with Dr Panjratan, however the worker refused to attend. The insurer, at the worker’s request, gave the worker three new IME options, and an appointment with Dr Doig was selected. Dr Doig also assessed 14% WPI, and an offer based on that assessment was put forward.

The worker commenced new proceedings in the PIC, where he objected to the respondent relying on both the IME reports of Dr Panjratan and Dr Doig pursuant to clause 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation).

Under clause 44(1), in any proceedings on a claim in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.

Decision

The only issue to be determined was whether both the IME reports of Dr Panjratan and Dr Doig were admissible. At first instance, the Member agreed with the insurer that both reports were admissible and should be provided to the MA.

The Member’s decision was upheld on appeal by Acting Deputy President Parker SC. The Acting Deputy President refused to grant the worker leave to appeal the certificate of determination issued by the Member (noting that the decision of the Member was interlocutory). His reasons for doing so included:

• The dispute was peripheral to the real issue, namely, the assessment of WPI, and therefore, a determination was not ‘necessary or desirable’.
• It would be unfair for the respondent to be deprived of an up to date medical review of the worker, noting that the worker refused to be re-examined by Dr Panjratan.
• Dr Doig’s report expressed the same conclusion as the report of Dr Panjratan.
• It is of assistance to the MA to have material which suggests that the worker’s condition has remained constant and stable.
• The appeal delayed the assessment by the MA.
• A properly instructed MA was unlikely to be improperly influenced by the two IME reports.
• The purpose of clause 44 was to prevent the Commission being overwhelmed by a large number of medical reports, and to discourage ‘doctor shopping’, which was not the situation in the present matter.

In any event, Acting Deputy President Parker SC determined that the grounds of appeal were not established and noted:

• Clause 44 does not apply to medical reports to be submitted to the MA because MA’s are not members of the Commission, and a medical assessment by a MA was not a ‘proceeding’ before the Commission. ADP Parker referred to the case of Fletchers International Exports Pty Limited v Regan (NSWWCCPD 2004), where DP Fleming found that the Commission had no power to restrict the disclosure of information to an AMS pursuant to clause 43 of the 2003 Regulation Clause 43 is similar to the current clause 44.
• The PIC is subject to s43 of the Personal Injury Commission Act 2020, which requires the Commission to act according to equity, good conscience and the substantial merits of the case. In circumstances where the worker agreed to be examined by an alternative IME, ‘good conscience’ required that respondent be permitted to rely upon the report.

Implications

Clause 44 of the 2016 Regulation restricts workers and insurers to reports from one forensic expert only. This means that, where possible, the worker should be referred back to the same IME that has previously examined them.

However, if a dispute is to be referred to a MA, there is an avenue for parties to rely on more than one forensic expert. This is when the insurer, at the request of the worker and in good conscience, has engaged a different IME.