Balancing the scale – the weight of expert medical opinion

The recent decision of Deputy President Snell in BGV v Waverly Council [2024] NSWPICPD 2 (11 January 2024) considered the weight to be given to medical evidence and confirmed the application of Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844 (“Paric”).

Brief facts

The worker was a Council labourer. The worker alleged psychological injury, being an aggravation of a pre-existing psychological condition, with a deemed date of injury of 2 April 2020.

Liability for the injury and claim for compensation was disputed by the respondent’s insurer on several occasions throughout 2020 and 2021; on the basis the worker’s employment was not the main contributing factor to the injury under section 4(b) of the Workers Compensation Act 1987 (“1987 Act”). The insurer also asserted a defence pursuant to section 11A(1) of the 9187 Act.

The dispute proceeded to arbitral determination in the Commission. An award was made in favour of the respondent. The Member was not satisfied employment was the main contributing factor to the aggravation of the worker’s underlying condition.

In making this decision the Member observed the causes of the deterioration in the worker’s condition were “complex and multifactorial”, and the evidence relating to the worker’s problems contained a “multitude” of work-related and non-work-related stressors.

Significantly, the Member observed the worker’s medical experts were not provided an accurate history of the personal matters affecting the worker during the relevant time(s). The Member said this was significant when considering the weight to be given to the medical report(s), in the context of competing contributing factors, including a relationship breakdown, cancer diagnosis, and history of psychological concerns requiring treatment. These factors had been demonstrated on the evidence admitted in the proceedings.

In contrast, the expert medical opinion relied upon by the respondent did have a history of these matters and their effect on the worker. The Member observed the respondent’s expert was the only retained expert with a history of the relationship breakdown, which was described as a “significant competing psychosocial stressor”.

Ultimately, the Member determined worker’s medical case on causation was “unpersuasive” and “must be discounted”. The Member said, “the fact her own experts were not appraised of extraneous but relevant matters is, in my opinion, fatal to the [worker’s] case”.

Decision on appeal

The worker appealed against the determination of the Member, asserting the Member misdirected himself regarding the test for causation of injury under section 4 of the 1987 Act, erred in finding the evidence did not demonstrate work was the main contributing factor to the injury, as well as failing to give adequate reasons.

The Council submitted the worker’s treating doctors and her independent medical experts were not “fully or satisfactorily” apprised of the contemporaneous medical records, and were not given any factual evidence nor told anything by the worker during the examination about non-work factors such as the relationship breakdown.

The Council argued these doctors were not in a position “where they could form a fully informed and considered view as to the relevant causal contribution of work and non-work-related matters”. Council submitted, in the language of Paric: the doctors did not report from a “fair climate”. Council argued the Member correctly placed less weight on these reports in the circumstances where they had received “materially incomplete information as to the competing causal factors”.

Deputy President Snell confirmed the reasoning of the Member in the first instance was consistent with the decision in Paric. Deputy President Snell observed the effect of Paric was the appellant’s medical case on causation was deprived of probative force, and so the Member was not satisfied the worker’s employment was the main contributing factor to the aggravation of a pre-existing psychological condition.

Deputy President Snell considered the difficulty in the proceedings was that the evidence, and particularly the medical evidence, was not adequate to support a finding of “main contributing factor”; due to the failure to comply with the principles in Paric.

The appeal was dismissed and the Member’s ruling in favour of the Council was upheld.

Learnings

Expert medical opinion is prevalent in many forms of litigation. In workers compensation, expert medical opinion is the foundation of claims and governs insurer decisions on eligibility. It is common for dispute proceedings to include (at least) one medico-legal report for each party. At the same time, the number of dispute applications before the Commission are increasing year after year.[1] 

As a result, there is growing pressure on insurers and legal practitioners to promptly arrange, prepare, and review expert medical opinion which addresses the precise issue which has arisen in the workers compensation claim at hand.

BGV v Waverly Council is a good reminder that dispute proceedings in the Commission can hinge on the weight given to the medical opinions relied upon by the parties. This decision emphasised the importance of the medical expert providing their opinion based on a complete and balanced history of events contributing to the injury, in a fair factual climate.

With the soon to be introduced 500-page limit on Commission filings,[2] it will become even more important for the relevant factual matters to be clearly and concisely set out to the medical expert, and in turn, supported by documentary evidence. So, if and when the expert medical opinion is relied upon in a decision or dispute application in the Commission; the opinion can be given appropriate weight.

Authors: Maddi Chaplin & Mick Franco