June 11, 2018

Insurance | ACT

What do you remember about your last visit to the doctor?  Do you recall how long you were sitting in those cramped waiting room chairs, wedged between the crying five year old and the old man coughing in your ear every 25 seconds?  What about once you got into the actual examination room – did you sit on the chair wedged awkwardly behind the door, or on the alarmingly narrow bed beneath all the unidentifiable, but very shiny medical instruments?  Did you exchange pleasantries or get right into why you were there?  What exactly did you say to your doctor?  What did they say to you?  Why is any of this important?

When you are sick or injured, your first port of call is usually going to be your GP.  You turn up, tell them what’s wrong, get some advice and maybe a medical certificate, and carry on with your day. There would not ordinarily be a need to fix in your memory precisely what you discussed. However, when a workers’ compensation claim is made, these early visits to the general practitioner can suddenly become very important; especially when these claims are being reviewed some way down the track and there are questions arising in relation to causation or date of injury.  

There can be a real disconnect between what is recorded by the doctor at the time of the appointment and what the claimant adamantly recalls they said at the time.  Mark might be confident that he reported a sore elbow due to lifting boxes, but Dr Nick’s clinical note clearly states that he had been at a two day tennis workshop, which had resulted in a strain to Mark’s elbow.  When these questions are being asked two years after the fact, it’s easy to see how the written record taken at the time might be more accurate; particularly when Mark can’t tell you what he was doing on Wednesday afternoon a week ago.

Contemporaneous medical evidence can be some of the most enlightening information provided at hearing in a workers’ compensation case.  Those few, sometimes barely decipherable lines can be the key to establishing whether Suzy became psychologically unwell on 5 July 2010 or 10 November 2010; and whether that illness was caused by her Mum passing away in June of that year, or because she was unsuccessful in getting a promotion at work during the recruitment round in October.

There have certainly been examples of cases where the claimant’s recollection has been preferred over the contemporaneous evidence. It is frequently argued that clinical notes should be treated with caution for a variety of reasons, for instance those outlined in the cases of Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] & Mason v Demasi [2009] NSWCA 227 at [2]:

(a)    the health professional who took the history has not been cross-examined about:

(i)      the circumstances of the consultation;

(ii)      the manner in which the history was obtained;

(iii)     the period of time devoted to that exercise, and

(iv)    the accuracy of the recording;

(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c)     the record did not identify any questions which may have elucidated replies;

(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.

 Similarly, there have been several examples where the clinical notes taken by GPs or Emergency Room personnel have been preferred over the memory of the claimant. In such cases consideration is given to the extensive nature of the medical history pre-incident and consistency in record. Often, preference is not given to the clinical notes because it is assumed that the claimant is lying, but simply due to the passage of time and the vagaries of memory.   

A recent example of the latter can be found in the case of Portors and Comcare [2017] AATA 2166.

The clinical notes in this case became particularly important due to the passage of time; the original date of injury was 15 years prior to the hearing in the Tribunal.  Comcare had accepted liability for a hernia in July 2002. At the hearing held in 2017, the Tribunal was being asked to accept that if Mr Portors had suffered a hernia, it was not actually related to work.  Mr Portors was adamant in his evidence that soon after lifting a table up several flights of stairs at work he suffered a sharp stabbing pain in his groin.  The Tribunal was provided with the clinical notes of the local hospital and Mr Portors’ treating GP; notes that were taken at the time. The Deputy President commented that Mr Portors’ had attended six consultations with five different doctors (as well as triage nurses) in the month following the incident. All in relation to abdominal pain.  All record the location of his pain to be in or around the abdomen. In none of the clinical notes or contemporary reports arising from those attendances is there any reference to groin pain.

As stated in the Deputy President’s decision, it seems highly improbable that Mr Portors would have told five doctors and two triage nurses that he was experiencing or had experienced sharp groin pain but that not one of them recorded that piece of information. While Mr Portors argued that doctors and nurses in busy emergency departments can often make mistakes, the Tribunal commented that the records taken by all of these medical practitioners were consistent in their documentation of abdominal pain. 

As noted by the Tribunal in its decision at [68], the acceptance of the contemporary medical records over the evidence of Mr Portors does not imply that he was deliberately untruthful; rather, his evidence suggested that he had forgotten many details concerning his long and complicated illness. It may be that the strong belief Mr Portors held that his work was responsible for his injury recast his memory of how it started; not because he is dishonest, simply because he continues to be in pain and it all happened a long time ago.

The take away here is that the importance of contemporary medical records should not be underestimated; and you should always take notes of what you say to your GP, just in case you need to make a claim one of these days and someone asks you about those unidentifiable, but very shiny medical instruments.