There are risks of forming a mistaken view about the existence of certain facts based on the contents of medical notes written by a doctor (typically, a treating general practitioner) or by reference solely to records about a claimant prepared by their former employer.
Clinical records
- The first is that the limitations of such documents can be overlooked. For instance, in the case of medical notes:
- They are not prepared by the claimant, but rather the medical practitioner. Â They are, obviously, not a record by the claimant of what was said and how the claimant perceived certain matters;
- They may have been prepared in a hurry by the medical practitioner;
- In terms of recording a conversation, what is often documented is a high level summary which lacks much detail. They are usually not an accurate ‘word for word’ account of what was said; and
- Generally they record what was relevant from a medical perspective in the consultation.
It is clear that care must be taken when interpreting what is recorded in medical notes, with a view to avoiding over confidence of their accurate meaning. The need for caution is further magnified when considering that medical practitioners are unlikely to have an independent recollection of discussions or indeed the broader consultation (as they see many patients and conversations may have taken place over a short period of time, often over a period of years). While practitioners may not be able to elaborate beyond what is written in the notes, the claimants themselves may be able to recall further details about conversations and consultations.
Employer records
Employer records are often prepared by human resource officers, payroll officers and/or managers who have no regular contact with (or in a large organisation, have very little or no knowledge of) the actual claimant.
Sometimes there is simply not enough time spent considering carefully, by reference not only to actual words but the surrounding context, what is actually recorded in such documents. In the case of medical notes, it can be important for notes of consultations to be considered in a broader context, such as other surrounding consultations, medical reports and personal characteristics of claimants themselves (for example, personality traits).
In the case of employer records, there is a risk in relying on documents such as sick leave records without appreciating, for instance, what abbreviation codes mean and how screen dumps and tables and the like, are to be read.
When what is derived from medical notes or employment records is significant to a claim, it is surprising that all too often no enquiry is made with the author of those documents to clarify or confirm what was actually said or recorded. For example, in the case of a medical note a report from the relevant medical practitioner may, or should, be requested. In our experience, when contact is made, not infrequently the author will provide comments or clarification avoiding what could otherwise have been misunderstood.
Daffy v MLC Nominees [2016] VSC 606
The recent Victorian Supreme Court decision of Daffy v MLC Nominees is a good illustration of the problems with placing significant reliance on what is contained in documents such as contemporaneous medical notes and employer records. It is a good example of why life insurers should exercise caution when drawing conclusions from such documents about absences from work and levels of incapacity.
On 14 October 2010 Mr Daffy suffered a prolapsed disc while lifting a large sliding door during the course of his employment. He was taken to hospital later that evening by ambulance and was reported to have experienced “incandescent pain”. Mr Daffy was hospitalised for four days, and was absent from work for about four weeks.
The defendants contended that, from the period after he left hospital (in the middle of October 2010) until 24 May 2011, Mr Daffy was not taking the time off or working the limited hours he alleged he did and was largely well and free of pain in a way that would allow him to work. The defendants pointed to a number of matters in support of this contention.
First, they pointed to Mr Daffy’s leave history records which showed entries only totalling seven days of sick leave taken in October 2010. However, the judge did not accept that these records constituted reliable evidence of Mr Daffy’s absence from the workplace due to the injury he sustained on 14 October 2010, as all the witnesses gave evidence which was inconsistent with these records.
Secondly, they pointed to the contemporaneous medical notes of Mr Daffy’s treating neurosurgeon in the period 18 October to 9 December 2010 which appeared to show that Mr Daffy responded very well to treatment and that he was essentially pain free and doing well. The defendants contended that this could not be reconciled with Mr Daffy’s allegation that he was unable to work properly due to severe pain throughout October/November 2010 to May 2011.
The judge rejected the defendants’ contentions for the following reasons (among others):
- Mr Daffy was admitted to hospital in agony and, compared to the pain he was in on admission, there would have been a significant improvement in the following days and weeks;
- Work colleagues gave evidence that, when Mr Daffy returned to work, he performed reduced hours with a modified work station and displayed clear signs of being in pain; and
- Mr Daffy’s wife gave evidence of his difficulties in performing activities of daily living.
In relation to the medical notes of the treating neurosurgeon making reference to Mr Daffy being pain free, the judge noted that this could be explained on the basis of the initial euphoria of his recovering from the “incandescent pain” at the time of his hospital admission and his downplaying his pain levels given his fear of surgery.
This article was written by David Arribas, Senior Associate and Philip Battye, Partner.