August 9, 2012

The recent decision of the Workers Compensation Tribunal in relation to the matter of G v SAFECOM brings to the fore the spectre of the Opinions issued from Medical Panels SA (brought in under legislative changes in recent years).

The crux of the matter considered by the Workers Compensation Tribunal in this case was as to in what circumstances the written Opinion issued by Medical Panels SA should or can be admitted into evidence.

Ordinarily a report or opinion of a specialist (be they a doctor or other expert) needs to be tendered into evidence through the expert themselves unless both parties consent. The language of the WorkCover legislation as it presently stands in relation to Medical Panel Opinions leaves it unclear as to whether that is a prerequisite for the Opinion to be tendered or whether the Opinion is as a matter of course admitted into evidence and then the weight of the Opinion reviewed.

In this case the worker challenged the admissibility into evidence of the Opinion on the basis that none of the doctors who constituted the Medical Panel (by whom he was examined) were asked to give evidence through which the Opinion could be tendered into evidence. In addition, the cause for concern for workers is that once a piece of evidence of this nature is admitted into evidence (ie being considered by the presiding judge) then unless the expert has been questioned or challenged before the admission of the evidence, the opinion or report effectively stands on its own. It is difficult to then challenge the accuracy or the weight to which an opinion or report is to be given when the author of the opinion cannot be questioned as to their reasoning process of evidence considered by them in forming their opinion.

SAFECOM, the compensating authority in the matter asserted that the language of the Act as it presently stands enables the Opinion to be admitted into evidence without challenge and asserted that the weight or relevance of the opinion could then be determined at a later date. The presiding Deputy President hearing the matter was swayed by that argument made by the Solicitor General (acting on instructions of SAFECOM).

The worker has appealed the matter to the Full Bench of the Workers Compensation Tribunal and it remains to be seen as to whether this issue will be resolved in what would asserted by the worker to be the logical course of action (ie that an opinion needs to be substantiated by the person or people who prepared it).