When can a plaintiff be required to
undergo multiple medical
examinations?
The recent decision of the District Court of Queensland in Teys Australia Meat
Group Pty Ltd v Flett [2015] QDC 177 demonstrates the difficulties faced by
defendants in seeking multiple medical examinations of a plaintiff.
Teys, a self insurer under the Workers Compensation and Rehabilitation Act 2003,
sought an order to compel an injured worker to undergo examination by a spinal
surgeon. The worker had already been examined by a neurosurgeon and two orthopaedic surgeons, one of whom was Dr Winstanley. Teys sought a further
examination from a panel of spinal surgeons, to comment on the impact of surgery
on the worker’s condition. It argued that Dr Winstanley could not comment on this
issue, as he no longer performed spinal surgery. The Court found that a further examination would be unreasonable or unnecessarily
repetitious. It commented that Dr Winstanley remained suitably qualified to
comment on the issue, notwithstanding that he did not perform the relevant spinal
surgery himself, and Teys’ application was dismissed.
The decision in Teys is consistent with earlier authorities, which emphasise the need
to balance the right of the defendant to obtain relevant information regarding the
claim with which to defend itself, with the plaintiff’s right to personal liberty.
In Jackson v State of Queensland [2005] QSC 161 the plaintiff underwent
examination by an occupational therapist, Kathryn Purse. In response, the defendant
arranged for the plaintiff to undergo examination by a physiotherapist, who
produced a report dated 3 November 2004. The defendant later sought to submit
the plaintiff to examination by an occupational therapist, which he refused on the
basis that it was unnecessary and repetitious. While acknowledging that the
defendant had a statutory right to obtain necessary and relevant information, the
Court found that such examination would be unreasonable and unnecessarily
repetitious, given the comparative qualifications held by an occupational therapist
and a physiotherapist. The defendant‘s application was dismissed and it was
ordered to pay the plaintiff’s costs.
Similarly, in the decision of Moore v Stage Coach Qld Pty Ltd [2004] QSC 003, the
defendant’s application for the plaintiff to undergo examination by a psychiatrist not
previously seen by the plaintiff was refused, as it had already obtained a report from
a psychiatrist in the statutory phase of the claim. The defendant argued that a
different psychiatrist was required, who would concentrate on issues relevant to the
litigated claim, rather those at a statutory level. The court accepted the plaintiff’s
evidence that it would be less traumatic to be re-examined by a psychiatrist known
to her, than one from the panel proposed by the defendant.
The defendant was successful in seeking an order for a further medical examination,
in the decision of Marony v Qantas Airways Limited [2011] QDC 308. The plaintiff
alleged that she suffered a workplace injury on 12 September 2008 and underwent
examinations by orthopaedic surgeons in May and August 2010. On 20 September
2010 the plaintiff suffered a whiplash injury in a car accident, which she did not
reveal to her expert neurosurgeon or the defendant’s orthopedic surgeon, in
examinations which followed the accident. Upon learning of the accident, the
defendant sought to compel the plaintiff to undergo examination by a spinal
surgeon. The plaintiff resisted the request as proceedings had been instituted, as
her statement of claim did not particularise a spinal injury and as there was no
incapacity due to the whiplash injury.
The Court ordered that the plaintiff undergo examination by a spinal surgeon,
notwithstanding that she had previously undergone examinations by orthopedic
surgeons. In doing so, the Court noted that the new examination would focus on
the plaintiff’s cervical spine, which had not previously been examined, and would
comment on the impact of the whiplash injury, which had not arisen at the time of
the prior examinations. It found that it was reasonable for the defendant to seek
this information, in furtherance of its defence of the claim.
These cases demonstrate that, while it is possible to submit the plaintiff to multiple
medical examinations, a court must be satisfied of a genuine need to do so, and that
simply seeking a further opinion on the issue will rarely satisfy such requirement. It
remains imperative to carefully consider the identity of an expert, and the
instructions to that expert, when submitting a plaintiff to an independent medical
examination, on the basis that there may not be a later opportunity to arrange
further examinations.
Authors
Fiona Sennett
Phone: +61 7 3231 6320
Email: [email protected]
Anna Clarke
Phone: +61 7 3231 6364
Email: [email protected]