Senior Member Lucinda Jack
Summary
The Tasmanian Civil and Administrative Tribunal (TASCAT) addressed a significant issue regarding informed consent in the context of workers’ compensation claims. The case centred on whether an independent medical examination (IME) conducted without proper consent could be used as evidence in a dispute over compensation for a workplace injury.
Background Facts
An employee (‘the worker’) of Huon Aquaculture (‘the employer’) sustained a back injury while checking fish nets. The employer subsequently disputed liability under s81A of the Workers Rehabilitation and Compensation Act 1988 (Tas) (‘the Act’). It’s also agreed that the worker had made an earlier claim for a knee injury which had been separately accepted by the employer.
The worker was referred to Dr Jack Dale, Consultant Occupational and Environmental Physician, for an IME. The worker was informed that the assessment would focus on her knee injury, not her back. The insurer had generated correspondence to the worker advising the assessment was also in relation to her back injury, however the letter was inadvertently not sent to the worker.
As a result, she did not provide informed consent for the physical examination of her back and was unaware that this part of the assessment would take place.
Issue
- Validity of Medical Report: Whether Dr Dale’s report could be admitted as evidence in the workers’ compensation dispute.
- Informed Consent: Whether the lack of informed consent for the back injury examination affected the admissibility of the medical report.
Decision
Senior Member L D Jack found that it would be unfair to allow the employer to rely on Dr Dale’s report because the worker had not consented to the examination of her back. The Tribunal held that the physical examination was conducted without informed consent, rendering any conclusions based on that examination inadmissible.
The employer was ordered to make weekly compensation payments to the worker and cover the costs of benefits under the Act.
Implications
- Precedent on Informed Consent: The case underscores the importance of obtaining informed consent from claimants before conducting medical examinations, particularly in the context of workers’ compensation claims.
- Impact on Workers’ Rights: The decision reinforces the protection of workers’ rights to privacy and autonomy in medical evaluations related to workplace injuries.
This case highlights the critical role of informed consent in the workers’ compensation process and serves as a cautionary tale for employers and insurers to adhere strictly to legal and ethical standards in managing workplace injury claims. It is also a reminder to medical practitioners that their assessments must be undertaken with informed consent and within the agreed scope, so that their reports withstand legal scrutiny and remain reliable evidence in tribunal proceedings.