Australia: Refusal To Undergo Medical Treatment In Determining Permanent Impairment

Last Updated: 23 April 2009
Article by Andrew Klein

The Administrative Appeals Tribunal has refused to accept an employee's evidence that she was unwilling to undertake medical treatment when assessing entitlement to permanent impairment compensation. The Tribunal did not assess the reasonableness of the refusal to undergo the treatment, but instead found that it was likely that she would in fact undergo the treatment in the future.


Ms Newton-Edwards was injured in 2003 whilst she was employed by the Australian Broadcasting Corporation. She suffered bilateral carpal tunnel syndrome, and Comcare accepted liability for the injury. Ms Newton-Edwards claimed that the injury has resulted in the following three impairments (all of which were claimed to be permanent):

  • pain and paraesthesia in both arms and hands;
  • depression caused by the pain; and
  • headaches caused by the effects of the injury.

Comcare denied that the injury resulted in Ms Newton-Edwards suffering any permanent impairment.

Recommended Medical Treatment And Employee's Refusal To Undergo Treatment

In 2004, Ms Newton-Edwards was referred to Dr Roberts for advice regarding her carpal tunnel syndrome. Dr Roberts recommended injections of cortisone as a 'first-line treatment'.

Dr Roberts told the Tribunal at hearing that, because of the time which has elapsed since Ms Newton-Edwards injured her wrists, cortisone injections would no longer be effective treatment for her injury. However, in the doctor's opinion, these injections could still be used as a diagnostic tool in that the effectiveness or otherwise of the injections in relieving Ms Newton-Edwards' symptoms in the short term would indicate the likely effectiveness of surgery as a treatment.

Dr Roberts also gave evidence that he continued to recommend that Ms Newton-Edwards receive the cortisone injections and that he would offer surgical treatment to Ms Newton-Edwards if the injections were of benefit to her.

Ms Newton-Edwards gave evidence that she had, for a number of reasons, decided not to have the cortisone injections and/or surgical treatment of her carpal tunnel syndrome. She did not explain why she did not undergo the cortisone injections when they were initially recommended by Dr Roberts.

The Tribunal also was told that approximately six weeks before the hearing Ms Newton-Edwards spoke to Dr Roberts by telephone and told him that she was considering having the cortisone injections.

The Tribunal's Decision

The Tribunal was satisfied that the symptoms experienced by Ms Newton-Edwards in her hands and forearms, her headaches and her depression were all consequences of the bilateral carpal tunnel syndrome. Consequently, if the Tribunal was not satisfied that the impairment suffered as a result of the carpal tunnel syndrome was permanent, it could not be satisfied that impairment from any of the conditions were permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal was satisfied that, at the time they were first recommended by Dr Roberts, cortisone injections represented reasonable rehabilitative treatment for Ms Newton-Edwards.

The Tribunal was also satisfied, despite Ms Newton- Edwards' statements to the contrary, that it was likely that she would undertake the diagnostic procedure of having cortisone injections in the immediate future. This conclusion was based on Ms Newton-Edwards' inquiries from time to time as to the means of her receiving the cortisone and the conversation between Ms Newton- Edwards and Dr Roberts prior to the hearing. Essentially the Tribunal rejected Ms Newton-Edwards' evidence that she had decided not to have the injections, commenting that:

'There is no dispute that Ms Newton-Edwards has not undertaken this treatment. In some circumstances a failure to undertake reasonable treatment may support a finding that an injured employee is determined not to accept such treatment and that consequently the impairment is permanent. However this is not the situation here. In our view the availability of reasonable treatment as yet unavailed of supports our conclusion that Ms Newton-Edwards is likely to undergo further diagnosis and subsequent surgery if she is advised to do so.'

In coming to this conclusion, the Tribunal was not required to make a finding as to whether Ms Newton-Edwards' refusal to undertake treatment was 'reasonable' or not, but did not consider this to be a factor of vital importance, stating that:

'During the hearing the parties devoted considerable time and effort in addressing the question of whether Ms Newton-Edwards' refusal to undergo treatment was reasonable. In determining whether an impairment is permanent this is a consideration of minor importance. It is not necessary to decide this question in this matter as even assuming that we decided that Ms Newton-Edwards' refusal is reasonable this would not outweigh the other factors to which we have referred.'

The Tribunal also considered, based on the evidence of Dr Roberts, that there was a likelihood that the surgical procedure would be recommended subsequent to the cortisone injections being administered, and in view of Ms Newton-Edwards' evidence that she could see no point in having the injections unless she was prepared to have the surgery, that Ms Newton-Edwards was therefore prepared to have the surgical treatment (if this was indicated as being useful by the results of the injections and the advice of Dr Roberts).

Consequently, the Tribunal was satisfied that there was a reasonable likelihood that there will be an improvement in Ms Newton-Edwards' carpal tunnel syndrome injury in the immediate future and that none of her impairments resulting from the conditions were permanent.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.