Doctor shopping? Insurer caught out as injury assessment strategy struck down

Just how many medical examinations can an insurer require an injury claimant to endure?
Consider the case of William Hinrichsen who suffered shoulder, neck and back injuries in a bulldozer mishap at Glencore’s Hail Creek mine in January 2016.

Occupational physician Chris Cunneen was the first of three medicos to examine the worker under request from WorkCover Qld.

Just two months after the accident, the Occphyz doctor diagnosed the 63-yr-old dozer operator’s upper spine and shoulder conditions as “totally” due to pre-existing degenerative pathology “alone”.

Any treatment from that point forward would – according to Cuneen – only be “to manage these pre-existing conditions. His work-related exacerbations from January 2016 have resolved”.

Presumably as a result of a review request from the worker, WCQ in May 2016 sought an “expert opinion” and for that purpose engaged orthopaedist Simon Journeaux.

That expert’s conclusions were markedly different to those of the occupational examiner.

Journeaux concluded there to have been a “whiplash type injury to the cervical spine with ongoing symptomatic aggravation of pre-existing degenerative disease of the left shoulder” consistent with and directly related to the accident “that will more likely than not need operative management”.

Acting on that advice, WorkCover in June 2016 referred Hinrichsen to Dr Journeaux’s colleague, shoulder surgeon Ken Cutbush.

Observing that the worker “was obviously uncomfortable with his neck and had a limitation in range of motion of his left shoulder” and suspecting traumatic arthrosis, Cutbush promptly operated.

In his post-surgery report to WorkCover, orthopaedist Cutbush concluded that whilst the patient had pre-existing degeneration in the AC joint, the very significant “step-wise” regression since the recent injury confirmed a traumatic arthrosis condition.

With the benefit of hindsight and the two reports from the orthopaedic surgeons, Dr Cuneen – to whom WCQ looked for an injury assessment – recanted on his view as to the worker’s shoulder condition and assessed its injury-related permanent impairment at 6%. For the neck injury – there being no orthopedic opinion available – he stood steadfast at 0%.

Hinrichsen initiated his damages ask in January 2019.

On receipt of the Notice of Claim for Damages, WorkCover stepped aside as claim manager in favour of the Swiss conglomerate’s self-insurer Xtracare.

The question soon arose as to by whom and of what medical specialty could the self-insurer demand the worker submit for any further injury assessment.

Suspecting the insurer was “doctor shopping”, the mine worker’s solicitors refused all three shoulder experts it proposed, suggesting instead that Dr Journeaux was “more qualified to provide your client with an appropriate medico-legal report”.

The contest over the selection of a medical assessor appropriate for Mr Hinrichsen’s case came before Justice Graeme Crow in April in the Supreme Court at Rockhampton.

Glencore contended that no medical examination that it proposed could possibly be considered “unreasonable or unnecessarily repetitious” because the only medical examinations arranged up to then had been done so by its claim handler predecessor, WorkCover.

“The statutory right in respect of medical examinations are conferred upon an insurer,” Justice Crow declared, rejecting that argument. “The alterations of [claim handling] arrangements cannot render a request for further medico-legal examination reasonable”.

But what of the three surgeons nominated by Glencore? Drs Philip Duke, Chris Blenkin and John Walters were after all “very experienced” shoulder specialists when compared to Dr Journeaux who – although expert in diagnosing shoulder conditions – referred surgery cases to others.

“Certainly if there is something particularly unusual about an injury, that may call for an opinion from a sub-specialist,” noted his honour. “The present case does not fall into that category”.

Rather, a degenerative shoulder condition aggravated by a traumatic event was “common” and one which Dr Journeaux “is more than adequately qualified to provide proper guidance to the court”.

More to the point according to the judge, Dr Journeaux was better qualified to conduct an injury assessment and provide an opinion more useful in resolving the economic loss dispute between the parties.

“The assessment which needs to occur is that of the combined impact of the neck and shoulder injuries upon Mr Hinrichsen’s economic capacity”, Justice Crow reasoned. “A sub-specialty opinion upon the shoulder alone will provide little guidance in the proper determination of the quantification of damages for loss of economic capacity”.

“In my view it has not been shown that there is an acceptable reason why the applicant should now have to undertake examinations by other specialists given his readiness to be re-examined by Dr Journeaux”.

“I consider it unreasonable and unnecessarily repetitious for him to attend upon a sub-specialist as proposed”.
Glencore’s strategy – if it was sitting on the Occphyz 0% for the neck while trying to subvert the significant injury assessment of the worker’s damaged shoulder – was blown away.

Hinrichsen v Glencore Queensland Limited [2019] QSC 112 Crow J, 7 May 2019

Categories: Law practice , Personal Injury , Litigation & Law Practice , Civil procedure , Mining Injury , Solicitors