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8.8.6 Requirement to undertake 'suitable' medical treatment
Section 41(2)(a) provides that compensation is not payable where the disfigurement would not be severe if the member underwent suitable medical treatment, S41(2) states:
41(2) For the purposes of this section:
a)facial disfigurement shall not be taken to be severe where, if the employee underwent suitable medical treatment, the disfigurement would not be severe;
The reference to 'suitable' medical treatment makes it clear that the medical treatment must be reasonable in all the circumstances and must not expose the member to any real risk of further significant injury. If, for example, a client was unwilling to undertake surgery, because of its attendant risks, the facial disfigurement should be accepted as 'severe' and assessed on the basis of its current state.
In considering whether the suitability of medical treatment should be judged by objective standards or by the subjective perceptions of the client, it is appropriate to adopt the approach taken by the High Court in Fazlic v Milingimbi Community Inc (1982). In that case, the Court had regard to what the employee knew about the proposed treatment and whether his or her concerns were reasonable, given that state of knowledge:
Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend upon the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed.
A court is not, save perhaps in exceptional circumstances to be mentioned hereafter, concerned with what in Tutton's Case Cozens-Hardy M.R. described as the question whether, on the balance of medical evidence, the operation may reasonably be performed on the worker. Its concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.
It follows that in the present case the extensive expert medical testimony showing that the operation might reasonably have been performed was irrelevant to the point in issue, the reasonableness of the appellant's refusal, since the facts deposed to were never known to the appellant, who was aware only of the treating surgeon's reticent and, if anything, rather discouraging statement about the operation that was recommended. Moreover the appellant had candidly confessed to his treating surgeon his fears regarding the operation and nothing had been said to dispel them. In those circumstances we cannot say that he was shown to have been unreasonable in refusing the operation and this despite the fact that the alternative facing the appellant was, as he had been told, that there would be no improvement in his condition.