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HG Insurance and Risk Alert: Coal Board Medicals must focus on current restrictions not future risks 14 August 2014

On 15 November 2013, Judge Baulch SC delivered a judgment for the plaintiff, Michael Haylett, in relation to personal injuries arising out of his employment by Hail Creek Coal Pty Ltd, finding that the plaintiff was capable of ongoing employment as a drill rigger with some difficulty.[1]  On 19 November 2013, Dr Parker, the nominated medical advisor appointed by Hail Creek Coal Pty Ltd, determined that the plaintiff was not fit to undertake his current position of a drill rigger under the Coal Mining Safety and Health Regulation 2001 (Qld) (the Regulation).

In this article, Senior Associate Anna Hendry considers the appropriate question for medical practitioners completing a Coal Board Medical and the latest instalment in Haylett v Hail Creek Coal Pty Ltd.[2]

Facts

Michael Haylett (the plaintiff/applicant) was injured in the course of his employment as a bulldozer operator over a period of time from January 2010, culminating in a discectomy and cervical fusion in August 2010.  He returned to work on light duties and was then retrained by his pre-injury employer (the respondent) to work as a member of a drill crew at a mine, on a significantly higher weekly income than his pre-injury income.  The plaintiff/applicant remained employed in this alternative role up until the date of judgment.  The Court accepted that the plaintiff was able to carry out those duties on a full time basis with some difficulty and the award of future economic loss was made on that basis, with judgment delivered on 15 November 2013.

Also in November 2013, the plaintiff/applicant was examined by Dr Green under the Regulation.  Dr Green found that the plaintiff/applicant had limited neck movement and was currently limited to drill rig operation only.  Based on that report, Dr Parker, determined that the plaintiff/applicant was not fit to undertake the current position because of the following restrictions: “Unfit due to a significant and foreseeable risk of further injury or aggravation of medical condition which prevents him from performing the occupational demands of the role.

Judgment

The plaintiff/applicant applied for a declaration that Dr Parker’s report was of no effect under the Regulation, arguing that Dr Parker erroneously based his assessment on the increased likelihood of the plaintiff/applicant sustaining further injury, rather than the question of whether the plaintiff/applicant was at that time restricted from performing his current role.

Under section 46(3) of the regulation, the health assessment must be carried out in accordance with the instructions, and covering the matters, in the approved form.  The approved form provides four alternative findings –

  1. That the worker is “fit to undertake any position”;
  2. That the worker is “fit to undertake the proposed/ current position”;
  3. That the worker is “fit to undertake the proposed/current position with the following restrictions...”; and
  4. That the worker is not fit to undertake the proposed/current position because of the following restrictions...”.

In MBR v Parker,[3] the Queensland Court of Appeal considered the approved form and found that the use of the word “restrictions” required a finding of current restriction in order to support a conclusion that the worker was unfit to undertake the proposed or current role.  In that case, it was found that the theoretical risk to health and safety posed by the likelihood a worker might suffer a cardiac arrest while operating heavy machinery was not a current “restriction” and therefore not a relevant consideration in the completion of the approved form by the nominated medical advisor.

In following the decision in MBR, Justice Philip McMurdo found the relevant question was whether the plaintiff/applicant was currently restricted from performing the role of drill crew member.  In doing so, he concluded that Dr Parker’s assessment identified a risk that the plaintiff/applicant’s work will result in a future event but not that the plaintiff/applicant was presently restricted in performing the tasks for which he was employed.  McMurdo PJ therefore found that Dr Parker’s report did not address the requisite question under section 46 of the Regulation and made a declaration in favour of the plaintiff/applicant.

Take Away Point

Unless there is a change to the approved form, employers arranging for their workers to undergo health assessments under the Regulation ought to ensure that the nominated medical advisor is provided with a detailed job description. This will allow the nominated medical advisor to properly consider all of the requirements of the role and determine whether there are any current restrictions and report accordingly.

For more information regarding insurance and risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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