"Procedural fairness" includes the opportunity to respond to all evidence26 April 2017
The Supreme Court of Victoria has remitted a Medical Panel opinion, on the basis that procedural fairness was not afforded to an employer because it was not given the opportunity to respond to material considered by the Panel.
What were the circumstances?
The worker sustained injuries to the neck and lower back in the workplace, liability for which was accepted by her employer, Toyota. However, the worker's weekly compensation payments were subsequently terminated. The worker disputed this termination and the matter was ultimately referred to the Medical Panel by the Court.
The Panel concluded that the worker was suffering from a chronic pain syndrome, that she had no capacity for work, that this was significantly contributed to by her work at Toyota and that the situation would continue indefinitely. Toyota appealed the decision to the Supreme Court.
In Toyota Motor Corporation Australia Ltd v Bendrups & Ors  VSC 718, the employer argued that the Panel had failed to afford it procedural fairness by not providing an opportunity to put forward its case that the worker's use of opioid medication was affecting her ability to work. Toyota also noted that it had made submissions to the Medical Panel, however, in the agreed facts provided to the Panel there was no reference to the worker's use of opioid medication.
Toyota argued that the Panel had included the nature of the worker's current medication and the impact of that medication on the worker, without first allowing Toyota to respond to the impact of the medication on the worker's medical condition and "the appropriateness and/or necessity of the medication into the foreseeable future".
The Supreme Court quashed the Medical Panel's opinion on the basis that Toyota was entitled to procedural fairness, even if the conclusion of the Panel would remain unchanged. The Court held that "the bar in terms of relevance in relation to a finding of a denial of procedural fairness is particularly low", and that Medical Panels are bound by the "hearing rule", which provides that both parties are entitled to put their case forward. The matter was remitted to the same Panel to avoid further costs and delays.
Make sure you've had your opportunity to respond
A Medical Panel cannot rely on information that has not been considered by a self-insurer. Medical Panel opinions should be carefully scrutinised to ensure that the material considered (and ultimately relied upon by a Panel to form its view) has been contemplated and sufficiently addressed by the self-insurer. If a self-insurer finds that the Panel has relied on material that it has not responded to in its own submissions (because it was unaware of it) then the self-insurer should act quickly, as strict deadlines apply to appeals.