Medical Examinations - Overview
Where a claim has been lodged under Section 319, the MRCC has the power to require, where necessary, a person to undergo medical examinations with a medical practitioner of its choice.
Legislative authority
The authority to require a claimant undergo a medical examination is contained in Section 328 of MRCA [2]. When a letter is issued requesting that a claimant undergo a medical examination then this section of MRCA and section 329 which outlines the consequences of not attending must be quoted. Failure to inform the claimant of their rights and obligations and directly refer to Sections 328 and 329 could contribute towards a contention by the claimant that they have a reasonable excuse for their failure or refusal to attend, and therefore prevent the suspension of compensation under s329(1) . See also administrative procedures below at 2.1.14.2.
Section 329 provisions are to be used as a last resort and the delegate is to use discretion in its application. Section 329 also has sub-clauses that are designed to prevent hasty punitive action:
2.1.14.1 Refusal or failure to undergo medical examination or obstruction of examination
If a person refuses or fails to undergo a medical examination without a reasonable excuse, or obstructs a medical examination, section 329 gives the MRCC the power to suspend compensation payments (except medical treatment) until the examination takes place. After any suspension commences, if the client subsequently complies and attends the required medical examination, the requirements of 328 (2) are satisfied and any entitled compensation payments can recommence. Any arrears during the suspension period is not payable. The lifting of a section 329 (1) suspension through eventual compliance by the client is self-executing and does not require a different delegate to make the determination.
Note, however, that a suspension in respect of a claim for one injury or disease does affect compensation payments in respect of all claims for all other conditions under this Act (excluding medical treatment).
Suspensions apply for the period of the suspension with any arrears that would otherwise have accrued during that period and would have been paid after the acceptance of liability not payable.
The MRCC will pay for the costs of medical examinations it has asked the person to attend and will also pay the cost of reasonable travel and accommodation expenses associated with attendance at such a medical examination.
2.1.14.2 Medical Examinations – Administrative Procedures
The following steps are to be followed for requiring claimants to attend medical examinations, and to pursue should the claimant fail to attend:
a) make appointment and advise the claimant of the details in writing. Include in the letter the implications of not attending the medical examination as per section 329; and
b) also specify that the information is required to determine the claim accurately and their failure to attend may result in the claim being determined with only the available information.
At the delegate's discretion claims may be determined using the information at hand. If this results in the claim being rejected, the claimant may then follow the appeal process.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18767%23comment-form
[2] https://www.comlaw.gov.au/Series/C2004A01285