It is not uncommon that employers may find themselves making a difficult decision about managing an injured worker’s employment. Those decisions are informed by medical evidence – so what happens when the employer is faced with conflicting medical evidence? Read the case below to find out.

Background

The employee was a Deputy at a mine and had various injuries relating to his shoulder, hips and heart, until it reached a turning point around January 2022 where he was deemed unfit for work for a few weeks.

The contentious injury involved back pain from 2021. The employee underwent a spinal decompression surgery that same year to treat his spinal stenosis and was undergoing a return-to-work process, part of which included attending independent medical examinations (“IME”) arranged by the employer.

What was the conflicting medical evidence?

The key issue in dispute was the conflict between the evidence of Dr M and Dr H as to the condition and stability of the Applicant’s spine following the spinal decompression procedure.

Dr M’s evidence: Dr M, the neurosurgeon who performed the spinal decompression procedure, considered that the employee’s spine was in excellent condition and any increased risk of further spinal injury was minimal.

A/Prof P’s evidence: A/Prof P, a sports physician, initially advised that the employee should remain off work until five months post-surgery. In a subsequent report, A/Prof P confirmed that the employee was medically cleared for pre-injury unrestricted duties.

Dr H’s evidence: Dr H, an occupational physician, conducted the IME which was arranged by the employer. Dr H considered that if the employee resumed his usual work duties, the injury could be reagitated by undertaking necessary parts of his role. Dr H was of the opinion that the employee was permanently unfit for work and had several permanent medical restrictions (such as avoiding lifting more than 15 kilograms between shoulder and knee height).

The employer’s view

Relying on Dr H’s evidence, the employer dismissed the employee because they considered that the employee could no longer perform the inherent requirements of his role safely at that time and into the foreseeable future, and there were no suitable alternative duties or redeployment opportunities given the nature of his permanent restrictions.

Findings – what happens when there is conflicting medical evidence?

Although the employer’s decision was based on the cogent medical evidence of Dr H, the Commission found that there was no valid reason for dismissal.

The Commission noted that where there is conflicting medical evidence, it is required to resolve the conflict. The Commission preferred Dr M’s evidence for several reasons, in particular:

• Dr M was the neurosurgeon who performed the spinal decompression procedure and was therefore uniquely placed to comment on the condition of the employee’s spine. His evidence was also described as “clear”.
• Dr H had placed a high level of importance on the pre-surgery x-ray scan as the basis for the permanent medical restrictions.
• Dr H acknowledged that he was not as experienced as Dr M in reviewing spinal imaging.

The Commission was not satisfied that the employee suffered from an alleged spinal incapacity at the time of dismissal, noting that the employer’s decision to dismiss the employee was based upon his medical conditions and in particular, the condition of his spine.

Practical takeaways

Careful consideration is required when assessing the credibility of conflicting medical evidence. The Commission responded to the employer’s submissions that it was problematic that an employer should be required to arbitrate conflicting medical opinion. The Commission noted that the employer was aware of conflicting medical views prior to dismissing the employee. It stated: “In circumstances where an employer is in receipt of competing medical opinions, it would be prudent to seek a further opinion which may be best achieved by the parties agreeing on a nominated independent medical expert.”

Employers must also keep in mind that any medical evidence obtained must be based on the employee’s state of health at the time of the dismissal, regardless of whether the evidence was obtained after dismissal.