Atlas Marine International Pty Ltd v Q-COMP [2013] QIRC 61

CITATION: Atlas Marine International Pty Ltd AND Q-COMP (WC/2013/104) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 556 - additional medical evidence Atlas Marine International Pty Ltd AND Q-COMP (WC/2013/104) DEPUTY PRESIDENT BLOOMFIELD 15 April 2013 DECISION [1] This Decision relates to an application by solicitors for Atlas Marine International Pty Ltd (the Employer) pursuant to s. 556 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) that an injured worker, Mr Simon Kent, be compelled to attend upon Dr Frank Varghese, consultant Psychiatrist, for the purpose of an assessment and preparation of a medico-legal report, prepatory to a hearing of the Employer's appeal by the Queensland Industrial Relations Commission (the Commission) in July 2013. [2] The application is strongly opposed by Mr P.B. O'Neill who represented the Review Unit, Q-COMP (Q-COMP), which submits there are already several medical reports from Mr Kent's treating psychologist, several reports from a psychiatrist (Dr Adams) who has commenced treating Mr Kent and several reports from an independent consultant psychiatrist (Dr Ljubisavljevic), who undertook examinations of Mr Kent in May and November 2012, respectively. [3] Section 556 of the Act relevantly provides: 556 Additional medical evidence (1) This section applies if - (a) the condition of a claimant or worker who has, or is said to have, sustained an injury is relevant to the appeal; or (b) the cause, nature or extent of the injury or incapacity arising from the injury is relevant to the appeal. (2) The appeal body may, at any time before or after the start of the hearing, order the claimant or worker to submit to a personal examination by 1 or more specified registered persons. (3) The appeal body may also, as the appeal body considers appropriate, make an order about - (a) the way, time and place of the examination; and (b) costs of the application for the order and of the examination. (4) An opinion formed on the examination must be given to the respondent and the respondent must make the opinion available to the appellant. (5) Subsection (6) applies if the claimant or worker - (a) fails, without reasonable excuse, to attend for the examination at the time and place ordered by the appeal body; or (b) having attended, refuses to be examined by a registered person; or (c) obstructs, or attempts to obstruct, the examination. (6) Any entitlement the claimant or worker may have to compensation is suspended until the claimant or worker undergoes the examination. [4] The medical reports disclose that Mr Kent is suffering a psychiatric or psychological condition related to events he witnessed, or was exposed to, during a period of employment in Bahrain in December 2011 and January and February 2012. [5] Mr Kent made an Application for Workers' Compensation on 28 February 2012 which was accepted by WorkCover Queensland (WorkCover) on 3 April 2012. The Employer subsequently requested a review of this decision which was dismissed by Q-COMP on 13 August 2012. The Employer has appealed Q-COMP's decision (WC/2012/351) which is listed for hearing by the Commission on 25 and 26 July 2013. [6] Copies of redacted medical reports attached to the present application reveal that Mr Kent was first examined by Dr Ljubisavljevic on 17 May 2012. The doctor diagnosed Mr Kent as suffering from an Adjustment Disorder with depressed and anxious mood (he also reported that Mr Kent had previously suffered from an Adjustment -- 1 of 4 -- 2 Disorder with depressed mood in mid-2010). The doctor opined that Mr Kent was totally and temporarily incapacitated for work but that his condition would improve, with adequate treatment, in the long term. He also stated "under the definition, an Adjustment Disorder is supposed to settle down within 6 months of the removal of stressors. For Mr Kent that will be within the next 3 months.". [7] Dr Adams reported on 5 September 2012 that he had conducted "an initial clinical examination" at the request of WorkCover on 28 August 2012. He opined that Mr Kent was suffering from an Adjustment Disorder with Depressed Mood (as well as symptoms of a co-morbid Post Traumatic Stress Disorder that do not quite meet the formal requirements for a diagnosis of this second condition under the DSM-IV-TR classification). Dr Adams opined that Mr Kent should be able to return to previous duties, by estimate only, "perhaps at the six month mark". [8] Although the report is not easy to follow, in that parts of it are redacted, Dr Adams states in his second report of 9 November 2012 "Simon's diagnosis of a Post Traumatic Stress Disorder with severe mood and anxiety symptoms was greatly complicated by his alcohol use… He reports an improvement in his sense of wellbeing although still suffers severe symptoms related to the core diagnosis (Post Traumatic Stress Disorder)…". [9] Dr Adams, who reported that Mr Kent continued to see him and has been a reliable and regular attendee, also opined that Mr Kent's "… work related injury is certainly not stable or stationary. Post Traumatic Stress Disorder is one of those conditions that is very difficult to predict, but a very loose estimate would be about six months before he could begin a suitable duties programme to return to work.". [10] Dr Ljubisavljevic issued a second report on 26 November 2012. Although this report is heavily redacted, sufficient aspects remain to note his disagreement with Dr Adams' assessment of Post Traumatic Stress Disorder. He also indicated "that with the current treatment he (Mr Kent) could commence (a) graduated return to work program within the next 3-4 months.". [11] Directions for the conduct of the Employer's appeal were issued on 23 January 2013. After some unsuccessful attempts to "broker" Mr Kent's examination by an independent psychiatrist of the Employer's choice, and unsuccessful attempts over several days to contact Mr Kent, a representative of the Employer's solicitors visited his residence at approximately 6.50 p.m. on 25 February 2013. The purpose of this visit was to deliver a letter to Mr Kent seeking his consent to visit Dr Varghese on Friday 19 April 2013 for the purposes of undertaking an independent medical assessment. Mr Kent's response was requested on or before 28 March 2013. He was also advised that, in the absence of consent, the solicitors would bring an application before the Commission to seek an order that he be required to attend such assessment. [12] Ultimately, after Mr Kent did not respond, solicitors for the Employer made the present application on 28 March 2013. [13] When the matter came on for hearing, Mr O'Neill said that the Employer's application was deficient in that it did not provide any particular grounds or reasons why the Employer's application should be granted. In Mr O'Neill's submission the reports of the psychologist, as well as the reports of Dr Adams and Dr Ljubisavljevic, respectively, all addressed the causal link between the work events and the onset of Mr Kent's psychological or psychiatric illness. In addition, each of the reports addressed Mr Kent's condition, diagnosis and treatment regime. In those circumstances, he said, there was no justification for any further assessment. [14] Mr O'Neill also highlighted a recent report from Dr Adams, dated 28 March 2013, in which Dr Adams opined that Mr Kent's condition had deteriorated in recent times because of the attendance, at his home after business hours, of the Employer's solicitor who attempted "to coerce" Mr Kent to sign consent papers to be examined by the Employer's psychiatrist. This contact was regarded, by Dr Adams, as "a significant contributing exacerbating factor" to Mr Kent's present condition. [15] Mr D.J. Kelly, who appeared for the Employer, highlighted the difference of opinion in diagnosis between the respective psychiatrists and highlighted a number of differences in the factual background provided by Mr Kent to the respective doctors. He said these differences called into question the accuracy of their conclusions, especially given that the Employer disputed many of the facts previously made known to the respective doctors. [16] In response to a question from the Commission as presently constituted, Mr Kelly said that the matters referred to at paragraphs 6 and 7 of his Outline of Submissions were provided on instruction and that his instructing solicitor was prepared to file a further Affidavit in relation to those matters, as a matter priority, if the Commission required it or if the present application was dismissed because of a lack of particulars. If that occurred, the Employer would file a fresh application with additional particulars. [17] Mr Kelly also questioned Dr Adams' impartiality and, in essence, his capacity to present impartial evidence to the Commission. He said that Dr Adams had, since providing an initial report to WorkCover in September 2012, -- 2 of 4 -- 3 taken on the role of Mr Kent's treating psychiatrist and, on his own admission, the role of Mr Kent's advocate. In such circumstances he said, it would be inappropriate, and unreasonable, for the Employer to be required to simply cross-examine Dr Adams about his reports without access to some independent assessment of Mr Kent. [18] After considering the submissions of Mr O'Neill and Mr Kelly, as well as the cases to which I was referred, I came to the conclusion that this is an appropriate case where I should exercise the discretion vested in me under s. 556 of the Act to order that Mr Kent submit to a personal examination by an appropriately qualified person. [19] Based upon my reading of the various medical reports, which I refer to above, as well as the assurance of Mr Kelly that his instructor is in a position to swear to the accuracy of the Employer's contentions as recorded at paragraph 6 and 7 of his Outline of Submissions (and noting that those matters would ultimately need to be tested in evidence), it seems to me that there is sufficient potential dispute about "the cause, nature or extent of the injury" (see s. 556(1)(b) of the Act), as well as the present condition of Mr Kent (see s. 556(1)(a) of the Act), to warrant Mr Kent being assessed by an independent medical expert in the appropriate discipline. [20] Quite apart from the (apparent) different diagnoses of Dr Adams and Dr Ljubisavljevic, respectively, as to the nature of Mr Kent's condition, their respective reports also seem to be based upon different factual backgrounds as to the circumstances which Mr Kent encountered in Bahrain. In addition, while Dr Ljubisavljevic appears to have noted, and paid regard to, Mr Kent's psychological/psychiatric condition in 2010, it is unclear whether Dr Adams has paid any significance to this history in the formulation of his opinions. Further, Dr Adams' statement of 28 March 2013 records "There was no history of mental health problems prior to his work in the Middle East but when he returned he was crippled with classical symptoms of Post Traumatic Stress Disorder...". [21] In making my decision that this is an appropriate occasion where the worker, Mr Kent, should be directed to attend a medical assessment I also noted the fact that Dr Ljubisavljevic is (now) the only medical practitioner who is not treating Mr Kent. While the Employer might have (and might still) seek his re-consideration of his earlier reports in light of any new and additional material which the Employer might draw to his attention, it is also the case that there is some merit in having a fresh clinical psychiatrist, armed with the potential matters in dispute, to undertake an assessment of the type proposed. This is because, at the end of the day, such an assessment is likely to lead to less disputation between the parties to the foreshadowed appeal proceedings. [22] For the foregoing reasons I determine that Mr Kent is to undertake an independent assessment by Dr Varghese on 9.30 a.m. on Wednesday 17 April 2013 (this date has been brought forward from the date originally proposed to Mr Kent, based on Dr Varghese's diary) and that the Employer is to bear the costs of Mr Kent's attendance at the appointment - including his transport to the appointment, and return, by chauffeured vehicle. My formal Orders are set out in the attachment to this Decision. [23] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2013 15 April (Hearing) Released: 15 April 2013 Appearances: Mr D.J. Kelly of Counsel instructed by Mr R. McAdam of Nyst Lawyers on behalf of the Applicant. Mr P.B. O'Neill of Counsel instructed by Ms R. Moroney of the Respondent. -- 3 of 4 -- 4 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 Atlas Marine International Pty Ltd AND Q-COMP (Matter No. WC/2013/104) ORDER Before: DEPUTY PRESIDENT BLOOMFIELD Date: 15 April 2013 Initiating document: 28 March 2013 Pursuant to s. 556 of the Workers' Compensation and Rehabilitation Act 2003, IT IS ORDERED: 1. That Mr Simon Kent submit to an assessment by Dr Frank Varghese, Consultant Psychiatrist; 2. That the assessment take place at Dr Varghese's rooms, located at Suite 55, Level 5, Silverton Place, 101 Wickham Terrace, Spring Hill, on Wednesday 17 April 2013 at 9.30 a.m.; 3. That Atlas Marine International Pty Ltd pay the costs associated with Mr Kent's attendance at the assessment, including the cost of travelling to and from the appointment by chauffeured vehicle; and 4. That the parties bear their own costs of this Application. Dated 15 April 2013 A.L. BLOOMFIELD Deputy President -- 4 of 4 --