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This case may prompt you to rethink what you do! The NSW Court of Appeal has found that a NSW worker whose permanent injuries arose from taking medication that was prescribed by an employer-appointed doctor is entitled to workers’ compensation. The Justices heard the Chep Australia Pty Ltd machine operator began experiencing elbow, shoulder & wrist pain in 2008, after repetitively lifting crates onto a conveyor line.

In August 2010, Chep’s “company doctor” prescribed Mobic, an anti-inflammatory drug known to elevate blood pressure, for the worker’s wrist condition. In October 2010, another doctor at the same practice advised the worker to stop taking Mobic after she complained of experiencing headaches & symptoms of hypertension, but resumed prescribing the drug several weeks later after her blood pressure “normalised”. The following month, the worker was taken to hospital with extreme pain in her head & eyes, and diagnosed with a ruptured aneurysm, which caused permanent neurological damage. She made a claim for weekly workers’ comp benefits & medical expenses.

The employer denied liability, but an arbitrator and then WCC President Judge Keating found the rupture was work-related because it resulted from the consumption of Mobic, which was prescribed to treat a work injury. The employer appealed, & told Justices Basten, Macfarlan & Barrett that President Keating had erred in declining to admit as evidence the reports & clinical notes of 3 medical experts (including the worker’s GP) which hadn’t been tendered before the arbitrator. The GP’s notes, for example, showed the worker had a history of high blood pressure unrelated to Mobic, it argued.

The employer also contended that President Keating was wrong to rely on the evidence of the worker’s neurosurgeon, who said that as raised blood pressure was a known side-effect of Mobic, the drug could have caused the aneurysm to rupture. The neurosurgeon’s opinion was the only expert evidence before the WCC that supported a causal relationship between Mobic & the rupture, and was “devoid of probative value”, it said.

Justice Barrett noted that under the NSW Workplace Injury Management & Workers Compensation Act 1998, the WCC wasn’t bound by the usual rules of evidence (where the factual basis of an opinion needed to be established by other evidence), & must “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. He also noted that the GP’s clinical notes would have strengthened the worker’s case if they had been admitted by President Keating. The notes showed the worker’s blood pressure was “significantly” higher during the periods when she took Mobic, Justice Barrett said. The bench dismissed the employer’s appeal. Could this occur at your workplace- what procedures do you have with your company doctors?

Article by: Julie Armour –

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