The Tasmanian Civil and Administrative Tribunal recently considered how far an employer may go in accessing a worker’s medical records in a workers compensation dispute.
The issue was whether an employer should be given full access to pre-injury medical records produced under a summons, or whether access should be restricted where a worker objects to certain documents on the basis that they are not relevant to the claim.
Background
In this case, the worker issued a summons to two medical practices they had attended. The medical records were provided to the Tribunal and reviewed by the worker, who objected to parts of the records being released to the employer. The worker argued that some documents were not relevant because they did not relate to the specific injury for which compensation was being claimed.
The Tribunal’s decision
The Tribunal confirmed that the test for relevance is a low threshold. Documents will generally be open to inspection where they have an “apparent relevance”, meaning they may reasonably “throw light” on an issue in dispute.
An objection based on relevance will not succeed if there is a reasonable basis to think that the documents:
- could be used as evidence, or
- may be put to a witness in cross‑examination,
and could affect the outcome of the proceedings in a way that is not fanciful or speculative.
In this case, the worker’s claim involved a degenerative condition. The Tribunal found there was a real possibility that the medical records sought could assist in understanding the issues in dispute and may be relevant to how the claim should be resolved. Because the documents might reasonably be used in cross‑examination, they were considered to be apparently relevant. The Tribunal accepted that there was a possibility that the documents returned may ultimately not turn out to be relevant, but this did not preclude the employer from inspecting them.
As a result, the Tribunal allowed the employer to inspect the pre-injury records without restriction.
Key implications
- This case suggests that in the context of workers compensation disputes TASCAT will generally allow access to prior medical history where the documents may assist in determining the issues in dispute or could reasonably be used in cross‑examination.
