SA Health has acknowledged its wrongdoing and says it won’t happen again.
Settling a lengthy workers compensation dispute, the South Australian Employment Tribunal has found in favour of Noarlunga Hospital mental health nurse Andrea Graham, ordering the Southern Adelaide Local Health Network (SALHN) to pay her more than $212,000 in compensation plus cover her legal costs.
In his judgment, Tribunal Deputy President Judge Tony Rossi criticised SALHN for “inappropriate” behaviour, which he said compromised the assessment process.
Rossi expressed “concern” at the “manner” in which SALHN acted by putting pressure on a medical specialist who assessed the injured nurse to try to convince him to change his report.
“It was inappropriate to assert that the assessor was required to change his report in order for it to be compliant, and by reference to powers conferred to SALHN,” Rossi said.
“Whilst it was entitled to seek the opinion of (a second specialist), it was inappropriate to engage to the extent it did to communicate with (the original assessor) and with a view to encouraging him to change his assessment.”
The nurse’s lawyer, Rhett Sugars from DBH Lawyers, told InDaily his client was “ecstatic with the result” and he was pleased the judge had called out SALHN’s behaviour.
“It’s meant to be an independent once-and-for-all process and they’ve tried to manipulate it in their favour,” he said.
“They’re definitely a big organisation and should be aware that (it) should be an independent process without trying to obtain evidence in an attempt to negotiate a resolution or better their position.
“It is good that Judge Rossi has raised this in this particular judgment to try and further eliminate this sort of behaviour.”
Graham, now aged 55, lodged a workers compensation claim for “tennis elbow” and neck pain injuries sustained at work in December 2017.
She was examined by occupational physician Dr Danh Tran in June 2019 who found she had a level of “permanent impairment” to be eligible for compensation.
But SALHN rejected her claim and disputed Tran’s report, saying it was “non-compliant” because of a grip-strength test he had used.
The nurse took her case to the Employment Tribunal and the matter went to trial.
SALHN employed a second medical opinion specialist – Associate Professor David Cherry – and then asked Tran, the original assessor, to “review” his report “and provide an amended version which is consistent and compliant under the Act”.
“Dr Tran did provide a further report in response dated 4 September 2019 where, over three pages, explained why he maintained the views expressed in his WPI (Whole Person Impairment) assessment report,” Rossi said in his judgment.
After some back and forth, the judge said SALHN then wrote to a private organisation which facilitates medico legal assessments, saying “Dr Tran is standing firm and states that his report is compliant under the Act/Guidelines”.
“I ask for Prof Cherry to provide further comment and if possible to provide his opinion regarding the (Whole Person Impairment) percentage for each injury the worker is claiming,” SALHN wrote.
“This may then assist us with negotiations.
“I think I will refer for legal opinion also.”
In his findings, Rossi said “no satisfactory explanation has been given as to why SALHN would communicate in this manner and expressly for the purpose of anticipated negotiations, where earlier correspondence suggested that the purpose of obtained further reports was to ensure compliance with the requirements of the… process”.
“This case is yet another illustration of how the integrity of the… process may be compromised by permitting subsequent communications with assessors once a report has been provided,” Rossi said.
Rossi said Graham attributed her injury to “repetitive use of her dominant right arm whilst performing administrative tasks together with a specific incident where she went to grab a paper file from a cupboard which was heavy”.
“It was over the following months that she gradually developed increasing symptoms to her neck,” Rossi said.
“In her affidavit evidence she refers to the ongoing symptoms and impairment that she has experienced. I accept her evidence in that regard.
“Ms Graham has experienced a serious reduction in right sided grip strength which, correspondingly, has resulted in a serious impairment in the performance of tasks which involves gripping with the right hand.”
Rossi said that during the trial, SALHN maintained that Tran’s report was “non‑compliant, and primarily with respect to the assessment concerning the right elbow injury, and by reference to Dr Tran’s application of strength evaluation method, where it has been contended that the method was inappropriate in the circumstances”.
The judge said he found Tran to be “an impressive witness”.
“After his initial report he was repeatedly asked to justify his assessment and even where there were aspects of reports provided by Dr Cherry, commissioned by SALHN, which did not accurately and at times fairly represent the content of the initial report of Dr Tran, he provided detailed further responses in three further reports,” Rossi said.
“Other matters were raised by Dr Cherry but I find that they were all satisfactorily addressed by Dr Tran in his written reports and in his oral evidence.
“Where there are differences between the evidence of Dr Tran and the evidence of Dr Cherry, I prefer the evidence of Dr Tran for the reasons given by him.”
Rossi stated that “whilst a compensating authority is entitled to seek out the opinion of another medical expert as to whether the assessor’s report is compliant, an important object of (the impairment assessment process) is to avoid competing medical evidence as to the appropriate assessment”.
InDaily asked SA Health for a response to the judge’s criticisms of its behaviour and in a statement, the Southern Adelaide Local Health Network said it “does not support this practice and has ensured appropriate practices will be undertaken for any future claims”.
Australian Nursing and Midwifery Federation state secretary Elizabeth Dabars said it was important that all workers compensation cases go through “a fair process that is not open to manipulation by the employer”.
“Nursing, like all professions, is an occupation where injuries can occur and it is vital that the integrity of the assessment process for workplace injuries and subsequent compensation is protected from any potential exploitation,” she said.
“Workers deserve to go to work without fearing they will be injured but when injuries do occur employers have a responsibility to ensure their staff are looked after and have the best chance of returning to work through the workers’ compensation scheme.”
Sugars said his client had returned to work in a different role.
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