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Ch 24 Dealing with Doctors and Medical Opinions
Delegates, as part of their claims investigation activities, will rely heavily on medical opinions to establish links between the claimed injury or disease and the member or former members service in the ADF. Sources of that advice will vary from ADF Health Services doctors, a treating GP and/or specialist or an independent specialist. There will also be occasions where information is sought from DVA Contracted Medical Advisers (CMAs).
Which source is used will be dependent upon the claimed condition, if the claimant is still serving, or if there is a treating doctor, either a GP or a specialist. The Liability handbook provides more specific directions on the use of specific medical providers.
However, it is important to consider the role that the CMA can play in DRCA cases.
A Delegate's seeking an opinion from a DVA CMA is quite a useful way in which liability issues can sometimes be made clearer for the Delegate. This is especially true in cases of diseases in which there may be legitimate questions about the likelihood of a material contribution to a disease by a claimant's service in the ADF. However, it is not appropriate for Delegates to make decisions which are unfavourable to a claimant on the basis of a DVA CMA opinion without at least giving the claimant an opportunity to provide evidence to support his or her claim or to refute the evidence available to the MRCC.
It is important that contemporary (ie. current) medical evidence is considered as medical records already in a claimant’s file (or obtained from Defence) can be a number of years old and it is necessary to confirm whether a diagnosis is still current and whether the diagnosis available adequately addresses the claim. Each case should be considered on its merits. If there is sufficient information on the file already, in particular for injuries which have resolved (and there is no suggestion of a sequela condition), or a chronic disease that has stabilised, it may not be necessary to seek further medical evidence. Advice from a CMA may be helpful to confirm this. However, if further evidence is required, contemporary medical evidence is not necessarily limited to specialist reports, it may also include x-rays, test results and other reports. This does not apply to psychiatric conditions, where specialist medical evidence is required.
In some cases where a condition has stabilised (ie. it is unlikely there will be any further change in the condition), and the medical evidence reflects this, it may be appropriate for a claim to be accepted or disallowed based on consideration of the existing medical evidence on a claimant’s file and after consultation with a CMA, without a need to seek further specialist medical advice. In addition, where it is clear that the condition cannot be related to service, eg. The condition is hereditary or the causes unknown, it may be appropriate to reject the claim based on CMA opinion.
Further information is available on this issue in the Initial Liability handbook, particularly when the issue of revoking liability is considered.
The following scenario illustrates the manner in which a DVA CMA's opinion might be obtained and used in a DRCA compensation case:
A claim for compensation in relation to a disease is received without any medical evidence to establish a link between the disease and the member's duties in the ADF. In such a situation, a Delegate might reasonably discuss the case with a DVA CMA to try to establish a basic understanding of the disease and its possible or probable connection to the member's service. In some cases, the Delegate may consider it appropriate to refer the compensation claim file to the DVA CMA for an opinion about the possible or probable connection to service.
If the DVA CMA were to provide an opinion that indicated that any such a connection was unlikely, it would not be appropriate for the Delegate to act solely on that advice and 'disallow' the claim. Rather, the next step would be to write to the employee or claimant, referring to the opinion of the DVA CMA and explaining that the CMA's opinion was sought in the absence of any other medical evidence to establish the likelihood of a connection between the claimed disease and the member's service in the ADF.
The employee or claimant would then be advised that, on the basis of the CMA's opinion, it is unlikely that liability could be determined in the employee's or claimant's favour. The employee or claimant would then be given an opportunity to provide further evidence to support the claim before a final decision is made. A period of 28 days is usually allowed in such circumstances, but in the case of initial liability a longer period could be allowed if the employee or his/her representative requested further time to provide such evidence. This is on the basis that there is no financial cost to the Commonwealth by delaying determination of the claim.
In a similar scenario to that described above, if a DVA CMA’s opinion was that there was a probable connection between a claimed disease and the employee's service in the ADF, the delegate may in such circumstances consider it reasonable and appropriate to find liability under the DRCA.
In summary, in circumstances where:
the claimed condition is one which ordinarily would not change over the intervening period; and
the relevant service and medical documents have been considered; and
a CMA has been consulted;
It would be open to a delegate to reject the liability claim, if they are satisfied on the balance of probabilities that a claimed condition is not related to Defence service, or alternatively to accept if they are satisfied that the condition is related to service.
However, before this occurs, the delegate should contact the claimant to discuss the matter and allow the claimant the opportunity to provide further medical evidence to support the claim before it is rejected. Further information can be found in Chapter 3.2 of the DRCA liability handbook.
If favourable evidence is subsequently received from the employee or claimant, it will then be a matter for the Delegate to decide whether liability can be accepted.
Although the above refers to DVA CMA’s, it is equally applicable to opinions which might in some cases be received from doctors who work with ADF Health Services.