Huon Aquaculture employee wins worker’s compensation claim after tribunal finds doctor did not get consent

A tribunal found in favour of a Huon Aquaculture worker’s compo claim after she injured her back while checking nets. The full decision.

Woman wins workers compensation claim against Huon Aquaculture.

A Huon Aquaculture employee has won her right to workers’ compensation from her employer after an independent doctor’s report into the injury was provided without the worker’s informed consent.

The worker, referred to as KM, told the Tasmanian Civil and Administrative Tribunal (TASCAT) that she received a back injury after checking fish nets in August last year, but attempted to continue working until she experienced “very bad muscle spasms”.

The decision stated this was supported by an initial workers’ compensation certificate from a doctor, which noted the worker presented with “symptoms of pain across the worker’s lumbar spine, made a diagnosis of ‘disc pathology L4/5’, and referred the worker to a neurosurgeon and a physician”, stating the employee was unable to work for a week.

A Huon Aquaculture fish pen moored at its Yellow Bluff lease in Storm Bay had a tear in its inner net, resulting in the loss of more than 120,000 salmon. Picture: Huon Aquaculture

Huon Aquaculture then arranged for the worker to be independently assessed for her back injury — and knee injury involved in a separate compensation claim — by Dr Jack Dale, a Consultant Occupational and Environmental Physician.

“It was Dr Dale’s conclusion that the worker was suffering from non-specific lower back pain, but that the worker’s employment was not the major or most significant factor that contributed to the worker’s back condition,” TASCAT senior member Lucinda Jack said in her decision.

KM submitted that the employer and insurer did not notify KM that she would be assessed for both injuries at the same appointment.

“Because the worker had not been advised that she would be attending Dr Dale for independent medical review of her back injury, she did not give informed consent to any medical examination or assessment in relation to that injury,” Ms Jack said.

Female Huon Aquaculture employee. Picture: supplied

Huon Aquaculture’s counsel submitted that the report by Dr Dale was classified as an independent medical report and that questions asked about KM’s history of back pain and injuries would have suggested the back injury was being assessed and she “could, at any time, have withdrawn her consent for any physical examination of her back”.

Ms Jack did not accept this submission and said an employee could only consent to a report and that report be considered evidence if “a worker understands what the assessment is about”.

“Dr Dale’s physical examination of the worker in relation to her back condition was apparently performed in the apparent absence of any informed consent.,” she said.

“It follows that Dr Dale’s conclusions expressed in the report were, at least in part, based on information that was improperly obtained, and ought not be accepted into evidence.

“The employer has conceded that if the report of Dr Dale is not accepted into evidence, there is no reasonably arguable case.”

Ms Jack ordered Huon Aquaculture to make weekly payments and pay the cost of benefits to KM.