Medical Reports - Revisited: workers compensation & the claims management phase

In a previous Bartier Bulletin (April 2005) we reviewed a decision of the Workers Compensation Commission in a matter of the State Transit Authority v Dadras [2004] NSW WCC PD 87 and the Pandora’s box it had opened up in relation to the admission of medical reports in Commission proceedings.

This issue has again been examined by the Commission in a matter of Oz Cabs Pty Limited v Boadu [2005] NSW WCC PD 126 in which Bartier Perry acted for the respondent.

The facts

Mr Boadu suffered injuries on 22 December 2002 when he was struck from behind by a bus whilst stationary at a set of lights on his way home from work. He filed an application in the Commission claiming lump sum and weekly compensation and an order in relation to the payment of medical expenses following the insurer’s decision to cease weekly payments.

The respondent sought to rely on the opinion of three orthopaedic surgeons in defence of the applicant’s claim in accordance with the decision in Dadras. At a teleconference in April 2005, the applicant objected to the respondent relying on three orthopaedic opinions. The Arbitrator had to decide on the admissibility of the three reports.

In August 2005, the Arbitrator handed down his decision. He ordered that the respondent was only allowed to rely on one of the reports because none of the reports were claims management phase reports. His primary findings were:

  • Section 119, and more specifically, section 119(1) of the Workplace Injury Management and Workers Compensation Act 1998 refers to those reports obtained by an employer rather than an insurer.
  • That a close reading of the Dadras decision suggests that claims management phase reports are those reports relating to the ongoing treatment and management of a worker’s rehabilitation and it does not encompass an independent medical report arranged by the insurer, and not the employer, after a claim has been duly made.

Instructions were obtained to appeal this decision. The applicant neither consented to nor opposed the appeal.

The Deputy President's Decision

Deputy President Fleming agreed with our submissions that the Arbitrator had erred in handing down his findings and they were without merit . In handing down her decision, she noted the following in relation to claims management phase reports:

  1. Whether a report is a claims management phase report is a question of fact.
  2. There is nothing in the Act or the Regulations limiting claims management phase reports to those reports obtained prior to a denial of liability.
  3. Genuine claims management phase reports are those that are necessary (Deputy President Fleming’s emphasis) for the making and determination of a claim and assisting in the goal of rehabilitation and returning an injured worker to work as soon as possible.
  4. In order to rely on a report obtained pursuant to section 119 as a claims management phase report, the employer must firstly demonstrate that the report meets the requirements of that section.
  5. Further to point 2 above, the only distinction suggested in the Act or the Regulations is in relation to an examination of a worker where a matter is, or is not, before the Commission (ie. section 119, being an examination of a worker prior to the commencement of proceedings, and 120 of the 1998 Act, being an examination of a worker by an AMS at the request of the Commission).

Noting the respondent had obtained all reports prior to the commencement of proceedings, Deputy President Fleming found that the three reports the respondent sought leave to rely on were obtained under section 119 (this is notwithstanding the respondent conceded one of the reports was a medico-legal report pursuant to section 43 of the regulation). She found that they fell within the definition of claims phase management reports in section 45(2)(d) of the regulation. She revoked the Arbitrator’s decision and ordered that the three reports be admitted into the proceedings.


This decision, when read in conjunction with the decision in Dadras and a further decision of the Commission in a matter of Fishburn v Integral Energy [2005] NSW WCC PD 53, may be seen to resolve the issue as to what is a claims phase management report.

However, in handing down her decision Deputy President Fleming noted that her interpretation of the Act and Regulation and decisions in this matter and Dadras may be an interpretation and outcome not in accordance with the intention of the legislation that could possibly be overturned on appeal (this was referred to in the earlier Bartier Perry Bulletin).

Interestingly, she also noted that a factor in her decision was that no guidance was provided as to when the ‘claims management phase’ ends. This possibly suggests her decision would have been different in this matter and in Dadras if such guidance had been provided.

It may be that the Regulations will now be further amended to include a definition as to when the ‘claims management phase’ ends. This will undoubtedly have a flow on effect as to the reports which the parties can again rely on in Commission proceedings thereby creating further uncertainty as to the reports a party can rely on in Commission proceedings. But at least at this stage there is no restriction on the number of reports an insurer can rely upon if those reports were obtained prior to the commencement of proceedings and pursuant to section 119.