What now for Medical Panels SA?
Published: 12 August 2011
Following the handing down of the Supreme Court decision in Campbell and Yaghoubi’s case on 27 June 2011, many people have been considering what the decision means for the ongoing operation of Medical Panels SA. There is a wide divergence of opinion about the effect of the decision. Some believe the decision renders Medical Panels useless while others say the decision makes no difference.
Before we discuss what the decision means, let’s first recite what answers the Court gave to the questions argued before it. The Court was comprised of three Justices. Any answer agreed on by two or more of the Justices forms the decision of the Court. Firstly, all three Justices agreed that compensating authorities have power to refer medical questions to a Medical Panel. Secondly, the majority held that compensating authorities had the power to refer questions to the Medical Panel both before and after a dispute has been referred to the Workers Compensation Tribunal for judicial determination. Thirdly, the Court unanimously held that a Medical Panel Opinion is not binding on the Tribunal, which may analyse the Opinion and determine whether it should be accepted. Finally, the Court rejected the argument that Medical Panels are invalid.
What this means is that both the power of compensating authorities to refer medical questions to Medical Panels and the role Medical Panels have to give Opinions on medical questions are valid. Consequently, a worker who unreasonably refuses to attend an appointment with a Medical Panel on referral from a compensating authority may find that their rights to recover compensation or receive weekly payments are suspended until they do attend.
Even if there is already a dispute before the Tribunal, a compensating authority is still able to refer medical questions to a Medical Panel. However, the Supreme Court did say that this right of referral would be subject to the implicit power that the Tribunal has to prevent the abuse of its own processes. Therefore, a worker could apply to the Tribunal to stop the referral going ahead if, for example, the compensating authority had delayed making the referral without good reason and the referral would unfairly delay or interrupt the hearing of the dispute in the Tribunal.
The decision also means that a Medical Panel Opinion may be scrutinised by a Tribunal and the Tribunal decides what weight or relevance the Opinion has to the issues the Tribunal needs to determine. The Opinion will be only as good as the facts upon which it is based and it remains the Tribunal’s role to identify the correct legal principles that apply to the issues in dispute. It is, therefore, open for a worker to argue at a trial before the Tribunal that a Medical Panel Opinion relied upon by the compensating authority should not be adopted by the Tribunal due to the Opinion being based upon erroneous facts or false assumptions. This may lead people to believe that a Medical Panel Opinion has no more value than any other expert opinion, which is why some say that the Supreme Court decision has demolished the usefulness of Medical Panels.
I disagree with that view. The reality is that a Medical Panel Opinion, which represents the consensus of three or more medical experts on a medical question, will invariably have more weight than the opinion of an individual expert. Provided that the Medical Panel Opinion is based on facts and assumptions that can be proven whether or not the worker has agreed with them, it will be very difficult for a Tribunal to discount it.
The key is the quality of the certificate of referral prepared by the compensating authority. If the referral is sloppy in that it fails to provide relevant, provable facts to the Medical Panel or asks the wrong questions, then the Opinion is likely to be unhelpful. On the other hand, if the referral is thorough and well prepared, the Opinion will be of great assistance and anyone who disagrees with it will bear a heavy onus to establish why it should not be accepted.
What this all means is that Medical Panels have an important, ongoing role to play in the management of claims and in the dispute resolution process. However, the effectiveness of their role is heavily dependent on compensating authorities preparing good quality referrals. Everyone interested in the scheme will have to wait to see if compensating authorities are willing and able to do this.