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
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
EML appealed to the Full Bench of the Workers Compensation
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.
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