Medical Panel under siege

Whilst I am currently in the process of going through the Medical Panel for a final impairment assessment, I came across this article in the media. I must say that I am quite surprised that a medical Panel would deliberately fail to exclude an unrelated impairment. I have been to the Medical Panel twice and each time I was extremely impressed with the professionalism, thoroughness and utter honesty of the Medical Panel’s doctors.

In my case they even acknowledged an additional injury that I had sustained as a direct complication of surgery, namely a severed nerve. This injury was initially covered up by the workcover insurance and in the end the Panel asked me to consider asking my solicitor to have the additional injury included in the liability. It did not take us long and we did not even have to attend the ACCS as the matter was very quickly “accepted” as soon as additional evidence was provided by my surgeon.

It is worth noting that when I was sent to an independent workcover doctor for the assessment of my additional injury, the (very very old General surgeon,not even an orthopedic) told me that he did not understand the relationship between limb 1 and the nerve injury in limb 2 – whilst (take deep breath)- I had tendon and muscles harvested and transplanted from limb 2 in limb 1 to fix limb 1 (being the original injury).

I strongly believe that the Medical Panel goes out of their way to ensure a fair assessment, either way. And I am extremely grateful that such a Panel exists! At least we, injured workers, have access to decent, honest, professional, non-corrupt and non-biased doctors to have our injuries fairly assessed (as opposed to the many bribed and corrupt so called independent medical examiners).

Also, it would appear to me (and I am a health care professional by the way) that it would be extremely difficult to assess several separate back injuries…

What do you think?

Supreme Court of Victoria identifies Medical Panel’s failure to exclude unrelated impairment

Alcoa Holdings Limited v Medical Panel Vic [2011] VSC 245

June 2011

A decision made on 24 June 2011 by the Supreme Court of Victoria has major implications for assessments undertaken by Medical Panels in impairment assessments under the Accident Compensation Act 1985 (Vic) (ACA).

Medical Panels are required to exclude impairments caused by previous and subsequent injuries and unrelated causes.

Facts of the case

On 10 September 2009 Mr De Haas lodged an impairment benefits claim against Alcoa Australia Rolled Products for an injury allegedly sustained on 5 August 2008 when he slipped on the floor in the course of his employment. His claim form identified four previous injuries to his back, the most significant having occurred on 29 May 1999.

An independent assessment was undertaken by Mr Keith Elsner on 18 January 2010. Mr Elsner recorded that Mr De Haas informed him that the May 1999 injury was the worst and “had caused most of my grief”, although this was disputed in Mr De Haas’ submission. Following the 1999 injury, Mr De Haas’ duties changed from manual labour on a production line to working in a laboratory carrying out permanent restricted duties.

Mr Elsner opined that the majority of Mr De Haas’ low back condition was due to pathology that pre-dated the 5 August 2008 fall. While he assessed a 5 per cent whole person impairment (WPI), he found that Mr De Haas had been left with a 0.75 per cent WPI as a consequence of the injury sustained on 5 August 2008. He applied s 91(7) of the ACA, which states that “impairments from unrelated injuries or causes are to be disregarded in making an assessment”.

Mr De Haas disputed the impairment assessment and the matter was referred to a Medical Panel for assessment.

Submissions were made to the Panel on behalf of Alcoa, referring to the Panel’s obligation to apply s 91(7) of the ACA. It was also submitted to the Panel that they must undertake an appropriate apportionment in accordance with s 91(7) and exclude impairment caused by previous injuries.

Medical Panel opinion

The Medical Panel consisting of a general practitioner and an orthopedic surgeon, undertook an examination of the Plaintiff and reviewed radiological evidence, which dated back to 1999. They assessed Mr De Haas as having 5 per cent permanent WPI that they found was entirely attributable to the injury on 5 August 2008.

The Panel then turned to submissions regarding appropriate apportionment pursuant to s 91(7). They stated they had reached their impairment using the “diagnosis related estimates”. They acknowledged the pre-existing lumbar degenerative changes and a history of back pain prior to 5 August 2008, but stated that “there are no medical reports in the referral documenting any impairments…for any back injuries prior to the accepted low back injury on 5 August 2008″.

They also opined that an apportionment of impairment was not open to them because there was no medical evidence of any prior assessments of the lower back being conducted in accordance with the AMA 4 Guides. The Panel also stated that it had no verifiable or complete evidence of the degree of impairment attributable to any pre-existing condition or injuries required by the Guides and therefore held that the entirety of the 5 per cent WPI was a consequence of the incident on 5 August 2008.

Decision of the Supreme Court

His Honour, Forrest J, found that there was evidence that Mr De Haas had pre-existing impairment and that the Medical Panel failed to exclude that impairment from its assessment.

His Honour stated:

In engaging in its statutory task the Panel must do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker’s current impairment. If the evidence enables it to determine the extent of the present impairment and that of the pre-existing impairment, then it must make allowance for the pre-existing impairment.

He went on to state that the Panel had no discretion to ignore the evidence of a pre-existing impairment.

His Honour acknowledged that the AMA 4 Guides do not contain mandatory language with respect to apportionment and that Chapter 4 of the Guides states “previously compiled data…[must]…be verified as accurate”. However he found that the ACA contains no such limitation and, where there is inconsistency, the ACA must prevail.

His Honour made clear that exclusion of unrelated impairments is not only required where previous impairment assessments are available. Medical Panels can use their collective expertise and knowledge to simply attribute an estimate of unrelated impairment, as Mr Elsner did.

His Honour remitted the original referral to a differently constituted Medical Panel for reassessment.