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Anforthm Allan; White, Boston --- "Doctor shopping by Comcare and its licensed authorities" [2022] PrecedentAULA 53; (2022) 172 Precedent 32

DOCTOR SHOPPING BY COMCARE AND ITS LICENSED AUTHORITIES

By Adjunct Professor Allan Anforth AM and Boston White

One of the problems in administering the Commonwealth workers’ compensation scheme by Comcare and other licensed authorities under the Safety Rehabilitation and Compensation Act 1988 (SRCA) is its adversarial and litigious nature. This is the case notwithstanding the express statutory direction to the contrary and the terms of the Model Litigant Legal Services Directions.^[1]

Recently in Wuth v Comcare,^[2] Wheelahan J described the litigation as having ‘a long, complex, and unsatisfactory history’^[3] and issued a timely reminder to those administering schemes, such as Comcare, when he stated:

‘In Ball v William Hunt & Sons Ltd [1912] UKLawRpAC 29; [1912] AC 496 at 500, Lord Macnaghten described the Workmen’s Compensation Act 1906 (Eng) as “the workmen’s charter”, thereby pointing to the beneficial character of the legislation. ... Comcare is conferred with functions which are consistent with the view that the Act is beneficial legislation. Under s 69(a), Comcare is to “make determinations accurately and quickly”, and in performing that function s 72(a) mandates that Comcare – “shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities.”

These exhortations are important to the proper and beneficial functioning of the compensation scheme.’ ^[4]

In calling for an inquiry into the scheme, Griffiths J crystallised the issue in these words:

‘The Court may not be fully apprised of all the matters which have contributed to a Dickensian type situation where almost 12 years after Ms Wuth made her claim for statutory compensation, that claim is still to be finally resolved. It is evident, however, that Comcare’s conduct is at least partly responsible for that delay ...

Based on my own judicial experience the sorry history of Ms Wuth’s application is not an isolated matter. In my respectful view there is an urgent need to conduct a detailed review of the operation of the SRC Act with the objective of producing reforms which simplify and make more efficient substantive, procedural and review aspects of the present statutory regime.’ [emphasis added].^[5]

One of the problems with the scheme’s administration is the entrenched practice of ‘doctor shopping’ by Comcare and its licensed authorities or their contracted claims administrators.

‘Doctor shopping’ refers to:

1. the choice of so-called ‘Independent Medical Examiners’ (IME) with known opinions who can be counted on to support Comcare and its licensed authorities in rejecting claims;

2. the use of multiple medical specialists of the same speciality to report on the same issue, expecting that the party with the most expert witnesses will win; and/or

3. if an unfavourable report is obtained from one medical specialist, then retaining another specialist whose views are more likely to be favourable.

These three aspects of ‘doctor shopping’ are commonly used in tandem;^[6] this practice has been the subject of some criticism within the Administrative Appeals Tribunal (AAT)^[7] and in the media.^[8]

An associated tactic is to avoid obtaining reports from treating medical practitioners, including specialists, on the basis that they are allegedly ‘therapeutically compromised’, meaning that they are likely to provide a report supportive of their client. In Colusso and Comcare (Compensation),^[9] the AAT was critical of this argument.^[10]

The medical specialist’s report can arise from different sources:

• reports from treating specialists to the treating GP;

• reports from treating specialists to Comcare;

• reports obtained by the employer as part of ‘fitness for duty’ investigations;

• reports from non-treating specialists commissioned by the claimant; and/or

• reports from non-treating specialists commissioned by Comcare or its licensed authorities.

Comcare and its licensed authorities will usually have reports from the above categories.

Three cases currently in progress in the AAT show how the process can go off the rails.

In Re Parker and ACT,^[11] the expert medical evidence consisted of:

• Ten different neurologists;

• Seven radiologists;

• Five different occupational and pain specialists, producing an astonishing 29 reports;

• Four psychologists;

• Three rheumatologists;

• Five psychiatrists who produced 12 reports; and

• One vascular surgeon.

Thirty-five different medical specialists produced 76 reports in addition to the GP, physiotherapist, and rehabilitation reports.

In Re Wells and ACT,^[12] the expert medical evidence consisted of:

• Five different orthopaedic surgeons who produced 12 reports;

• Two rheumatologists who produced four reports;

• Two pain specialists who produced seven reports;

• Four neurologists;

• Two psychiatrists; and

• Two psychologists.

Seventeen different medical experts produced 34 reports, in addition to rehabilitation and GP reports.

In Re Bian and ACT,^[13] the expert medical evidence included six different psychiatrists who produced 11 reports.

COMMENT

Whether there are any errors or excuses offered regarding the volume of medical reports obtained in the above three matters is irrelevant to the problem they highlight. The fundamental issue is that Comcare and its affiliates' ongoing culture and processes are not consistent with the command restated by Wheelahan J to act with equity and good conscience, and they cause significant distress to claimants. As such, these processes urgently need to be corrected.

‘Doctor shopping’ by Comcare and its licensed authorities is part of a culture to ‘win at all costs’. It is unfair to claimants for three reasons:

1. It causes them stress as a result of the denial of their claim and during the litigation process.

2. It causes them unnecessary monetary costs in responding to the volume of medical reports that Comcare and its licensed authorities have obtained, including the cost of calling medical experts to give evidence.

3. It causes them monetary costs because of drawn-out hearings, largely driven by the need for the medical experts to give evidence.

The practice of ‘doctor shopping’ (and the associated costs and lengthy hearings) is moreover unfair to the general public, as it delays the hearing of cases that genuinely need to be determined by the AAT or the Federal Court on important issues of law or principle.

Many who act for claimants in the Comcare system consider that the practice of doctor shopping amounts to an abuse of process by Comcare and its licensed authorities, is a breach of the Model Litigant Guidelines, and brings both Comcare and the dispute resolution process into disrepute. It is time for a comprehensive review.

Adjunct Professor Allan Anforth AM is a barrister and Adjunct Professor of Law at the University of Canberra.

Boston White is a student at law.

^[1] Legal Services Directions 2017, appB(1). See also Thomas v Mowbray [2007] HCA 33, 260 (Gummow and Crennan JJ); Re Moline and Comcare [2003] AATA 827; (2003) 77 ALD 224, [4]–[13].

^[2] [2022] FCAFC 42.

^[3] Ibid, [5].

^[4] Ibid, [123]–[124].

^[5] Ibid, [3]–[4].

^[6] See generally Richards and Comcare (Compensation) [2015] AATA 1031.

^[7] See below notes 8–10.

^[8] R Clayton, ‘Federal Government workers compensation authority Comcare accused of unethical behaviour’, ABC (online, 05 February 2021) <https://www.abc.net.au/news/2021-02-05/insurer-comcare-doctors-bullying-federal-workcover-claimants/13112086>.

^[9] [2022] AATA 2464.

^[10] Ibid, [54]–[55].

^[11] (AAT, 1521/21, commenced 2021).

^[12] (AAT, 4456/20, commenced 2020).

^[13] (AAT, 1949/21, commenced 2021).