Self insured employers may have experienced cases where an injured worker declines to attend a medical examination by the Medical Panel upon legal advice. There is a school of thought amongst lawyers acting for injured workers that the relevant sections of the Workers Rehabilitation and Compensation Act 1986, are invalid and /or do not grant compensating authorities the power to refer medical questions to the Medical Panel.
Such a situation arose in the matter of Yaghoubi V Employers Mutual Limited which we reported in the Winter edition of the DWReport. In that case, EML had rejected the worker's claim and, after the worker disputed the rejection, EML attempted to refer the question of whether or not the alleged disability was compensable to the Medical Panel. The worker declined to attend before the Medical Panel upon legal advice.
Initially, the Workers Compensation Tribunal found that the compensating authority had no power to refer the medical question to the Medical Panel as the dispute had progressed past the conciliation stage to Judicial Determination. The implication of the decision was that the referral to the Medical Panel would have been valid if it had been made during the conciliation stage of proceedings.
EML appealed to the Full Bench of the Workers Compensation Tribunal.
We can now advise that the Full Bench has referred this matter to the Full Bench of the Supreme Court of South Australia for determination of certain questions of law. It is possible that the Supreme Court might consider this matter and publish its decision before the end of 2010.
While the Supreme Court's response should provide an answer to the question of whether a compensating authority can refer medical questions which are the subject of a dispute before the Workers Compensation Tribunal to the Medical Panel, it is unlikely to provide an answer to the wider question of a compensating authority's power to refer questions to the Medical Panel in the context of case management. That issue will likely have to await another day and another dispute.
We will report to you on the Supreme Court's decision, and the implications of that decision for self insured employers, as soon as the Supreme Court delivers its judgement.
If you have any questions about the Medical Panel or workers compensation in general, please contact: John Walsh, Margaret Kaukas, Kate Keough, or Megan Langford from DW's Self Insurance and Workers Compensation team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
