Mr Hinrichsen suffered an injury during the course of his employment with the Respondent (Glencore Queensland Limited) at the Hail Creek Mine. Mr Hinrichsen was injured when the bulldozer he was operating fell into a hole made by a large rock which he was trying to pick up. The impact of the fall resulted in Mr Hinrichsen suffering injuries to his left shoulder, neck and upper back.
Mr Hinrichsen commenced a Workcover claim for statutory benefits. During the Workcover claim process, he received medical treatment from his general practitioner, physiotherapy treatment and rehabilitation treatment. He also undertook numerous radiographs.
On the 21 March, Mr Hinrichsen was examined by an occupational physician and subsequently diagnosed with both, an exacerbation of a pre-existing degenerative cervical spondylosis and a pre-existing degenerative left ACJ (shoulder) with minor bursitis.
On 4th May 2016 Workcover Queensland (Insurer) referred Mr Hinrichsen to two other orthopaedic surgeons to provide further “expert opinions” with respect to his injuries. They also requested that Mr Hinrichsen be examined again by Dr. Cunneen.
On 14th January 2019 Workcover Queensland was replaced by Xtracare for liability purposes regarding Mr Hinrichsen’s injury. The respondent requested that Mr Hinrichsen undergo another/ yet another “independent medico legal examination with an orthopaedic surgeon”.
The Applicant agreed to undertaking a further medical examination by Dr Journeux whom he had seen in 2016 at the request of Workcover Queensland. Mr Hinrichsen submitted that Xtracare’s invocation of section 282 in requiring/requesting him to undergo further examination by another orthopaedic surgeon was unnecessary and unreasonable in the circumstances.
The section relied upon by the employer (s282) turns on the necessity and reasonableness of an insurers request for a claimant to see multiple or additional medical specialists. Specifically, the issue in this case was whether it was reasonable for Mr Hinrichsen to visit an additional orthopaedic surgeon in light of the different insights, observations or skills that they would bring to the issue.
The court specifically distinguished this case from other similar cases, in that each of the various orthopaedic surgeons visited by Mr Hinrichsen, came to the same conclusion and diagnosis regarding his injuries.
They also emphasised the principle that an alteration in insurance arrangements for, and on behalf of a defendant cannot render a request for further medico-legal examination reasonable. The court found against the employer that their change in insurer affected the qualifying principle of reasonableness present in the statutory right to obtain further medico-legal reports.
The Court also made reference to both, the generic and unchanged nature of Mr Hinrichsen’s condition in concluding that it was unreasonable and unnecessary to require him to undergo further examination.
What is the lesson learned?
This case highlights that an insurers request may be considered unreasonable and unnecessary where
- The condition is unchanging and of a generic nature
- The practitioner requested to undertake the examination brings no knew insight, observation, skill-sets or knowledge to the issue.
- The Claimant has previously seen specialists in the same field as the requested practitioner and such specialists have come to substantially similar conclusions regarding an injury.
It also demonstrates that the court will not find a request reasonable by virtue of a change in insurers by, and on behalf of the Respondent.
This article was written by Brittany Everett
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