Published: 29 August 2017
Author: Ryan Carlisle Thomas
The importance of a medical report in WorkCover proceedings
Doctors and health professionals often express bewilderment and surprise to us when asked to provide a medical report by a deadline in support of a patient’s WorkCover claim, or in the lead-up to a Court Hearing. Similarly, doctors and health professionals often contact us to query the reasons that certain questions have been posed by us in a request for a medical report where the degree of detail sought seems excessive.
Some common questions we are asked follow.
What is a medical report?
Order 33 of the County Court Civil Procedure Rules, which applies to many types of WorkCover litigation, defines a “medical report” as:
(a) “…a statement on medical matters concerning the plaintiff, whether in writing or oral, made by a medical expert”; and
(b) “includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the expert obtained or caused to be brought into existence subsequently.”
The second part of the definition might obviously include a radiology or other investigation report, or a letter from a specialist, which informs the opinions formed by the medical expert.
Order 33 also states that a medical report which has been properly served upon the Defendant (ie. the WorkCover insurer or sometimes the employer) “is admissible as evidence of the opinion of the medical expert who gave the report and of the facts upon which the opinion was based.”
So, a medical report acts as a written record of the medical expert’s opinions, and evidence of the facts that were relied upon by the medical expert in forming those opinions.
Who is classified as a medical expert?
This term is defined in Rule 33.03 of the County Court Civil Procedure Rules to mean “medical practitioner, dentist or psychologist as the case requires”.
Continuing the legal obsession with defining terms, medical practitioner, dentist and psychologist are each defined in the Court Rules. The definitions refer in each case to “a person registered or qualified to be registered under a Health Practitioner Regulation National Law to practise in the relevant discipline, but those registered as a student are excluded from the definition.”
Why are medical reports important to lawyers?
In WorkCover litigation, a patient bears the burden of proving the facts of his or her case. This is what is termed the “burden of proof”. The degree to which the facts must be proven by the patient is “on the balance of probabilities”, or “more likely than not”.
The patient’s burden of proof requires them to produce evidence to the Court in support of the factual and medical propositions the law requires them to establish.
In the case of medical evidence, the relevant Rules requires the patient/client to provide their medical evidence in the form of a medical report.
if there is no medical report there is no medical evidence - accordingly a patient/client cannot satisfy their burden of proof in relation to the issues in question.
How vital is the information in the medical report?
As lawyers, we obsess about the content of medical reports because the Rules provide that a patient cannot usually introduce evidence from a medical expert in the witness box at the trial which has not been previously disclosed in that medical expert’s medical report.
In other words, if the medical report does not make mention of all of the medical evidence that is of relevance to the legal issues in the case, then a client may be denied the opportunity of introducing that material to the Court for the first time in the witness box.
This is often the reason why we seek supplementary medical reports on behalf of our clients. These supplementary medical reports ensure that the medical evidence put before the Court on a client’s behalf are up-to-date and contains the most recent history, diagnosis, and record of investigations undertaken.
We might also seek a supplementary medical report from a doctor or health professional because specific issues have arisen from the WorkCover insurer’s medico-legal reports that we want them to comment upon. We might also need them to comment on the significance or otherwise of some prior or subsequent injury to the same body part that the client has just made us aware of - or that we have discovered reference to in the clinical/treatment records.
Are medical reports time sensitive?
Yes. There is a requirement in the Rules for the medical report to be served at such time as the Court directs. A Judge will make Orders from time to time about when medical reports must be exchanged. If the report is not served within those timeframes the Judge may refuse to allow the medical report into evidence, and make their decision on the evidence that was submitted on time.
In a conciliation conference before the Accident Compensation Conciliation Service we are eager to receive the medical report prior to the conciliation conference for a number of reasons, as follows.
- A conciliation conference is the first opportunity we have to sit down with the insurer and the employer in the presence of a neutral person called a Conciliation Officer and attempt to resolve the dispute quickly and cheaply without heading to Court. Armed with a detailed and responsive medical report we can attempt to persuade the WorkCover insurer to change its mind without having to go to Court.
- If resolution is not possible then the medical report will assist us to convince the Conciliation Officer to refer the dispute to a Medical Panel or to a Court to be resolved.
- Lastly, a conciliation conference presents one of the few opportunities we get in the WorkCover process to obtain reimbursement of the health professionals’ report fees from the WorkCover insurer. After that point, we are only able to be reimbursed the report fee and our other similar outgoings if we win litigation in Court. Unlike our competitors, we don’t charge the client medical report fees and our outgoings if their case is unsuccessful.
We encourage any health professional to contact us if they wish to discuss what is required of them when confronted with a request for a medical report by a lawyer (or an insurance company) in relation to a patient’s WorkCover claim. For helpful and practical assistance, at no obligation to your patient, contact Ryan Carlisle Thomas at 1300 366 441.