The right to refuse a medical examination

A recent decision of the Workers Compensation Division of the Personal Injury Commission determined whether an injured worker had to attend a medical examination arranged by their employer.

The worker sustained psychological injury in her employment. The employer accepted liability for her claim while it conducted further investigations that included a request that the worker be assessed by a Psychiatrist. The worker objected to the medical examination in circumstances where her General Practitioner was prepared to promptly provide her treatment records.

When the worker’s solicitor confirmed she would not be attending the “unreasonable” examination, the employer suspended the worker’s weekly payments. It was quite clear from an objective view that the employer had ignored the Workers Compensation Guidelines 2021 at this point. This was despite the worker’s solicitor drawing the relevant part of the guidelines to the attention of the employer. That part of the Guidelines states:

“7.7 Unreasonable request
If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.

The insurer must consider this objection and advise the worker of their decision. This advice must include contact information for the Workers Compensation Independent Review Office (WIRO). Benefits are not to be affected prior to adequate written notice being received by the worker.

Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinstated.”

The worker lodged an application in the Workers Compensation Commission, and it was heard by Arbitrator Batchelor, who delivered a decision on 15 September 2020. Arbitrator Batchelor referred to the Guidelines and noted that referral for an independent medical examination is only appropriate “when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners”. Arbitrator Batchelor held it was open to the employer to simply pay the General Practitioner’s invoice and then obtain the treatment records. On this ground alone the medical examination did not comply with the Guidelines. He found the worker was not obliged to undergo the medical examination and the employer could not suspend her weekly benefits.

The employer appealed Arbitrator Batchelor’s decision in the newly established Workers Compensation Division of the Personal Injury Commission. The employer argued that Arbitrator Batchelor erred by determining it did not comply with the Guidelines.

However, Deputy President Snell agreed with the original decision of Arbitrator Batchelor. He did not find any merit in the argument advanced by the employer that the Guidelines represent “a non-binding indication of policy” and instead determined Arbitrator Batchelor was bound to rely on the Guidelines. Deputy President Snell rejected the employer’s argument that it was prevented from making pre-payment of the General Practitioner’s invoice on the basis of a document titled “Workers compensation guide for medical practitioners”. Deputy President Snell held this submission was “plainly wrong” given the document did not possess “any regulatory authority at all”. The employer’s appeal was dismissed and Arbitrator Batchelor’s decision was confirmed.

This decision serves to highlight that quite often workers compensation insurers make requests of injured workers that are unreasonable and often unlawful. Do not hesitate to seek legal advice if you think something is unreasonable.

As an injured worker you are entitled to be advised by Toby Tancred. The Independent Review Office (IRO) can assist by providing funding for this legal advice. IRO provides funding to approved Solicitors to investigate claims, provide advice to you as an injured worker, and deal with employers and insurers on your behalf. Toby Tancred is an IRO Approved Lawyer, a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and his team have the experience, knowledge and ability to help all injured workers in difficult times.