A few days ago workcovervictimsdiary.com received a rather difficult-to-answer email from an injured worker, located in Victoria. The injured worker, who is supposed to attend court to dispute weekly payments, medical expenses and liability for additional injuries, is wondering whether his world is falling apart now that the workcover insurer insists on a Medical Panel opinion at short notice, prior to the scheduled hearing in court…
Medical Panel or a judge?
The injured worker’s question
“I am trying to work out if my world fell apart today or if it is a good thing. My lawyer rang to tell me that my [court] case has been put on hold because the other side [the insurer] want me to go to medical panel. I was offered medical panel in my last conciliation [ACCS], but my lawyer was advising that I have more control over a judge compared to 3 non specialists. What are your thoughts on this?
I have a head injury that has [also] caused nerve damage and pain. But what we do know is ‘pain doesn’t rate’. I have seen over 30 different doctors some for that side [insurer] and some for mine.
I know that a Medical Panel is binding and that there is no chance to appeal. The issues are weekly payments, medical expenses and we added the injuries which they didn’t accept liability for the [initial] permanent assessment.
How are disputes with WorkCover resolved?
Resolution of a dispute by a court is usually a last resort as there are a number of alternative dispute resolution mechanisms available. With good guidance (i.e. advice of your lawyer, union and/or WorkCover Assist) most disputes with WorkCover (insurer) can be resolved without a court hearing.
Most disputes are initially referred to the Accident Compensation Conciliation Service, which will attempt to resolve a dispute in a more informal manner.
Lawyers are usually not permitted to appear at most conciliation hearings sometimes they can if for example the matter is about liability of injury), but two excellent and free advocacy services are available to assist you.
Union Assist is an advocacy service for union members and WorkCover Assist is a formidable free service able to help all other employees. If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court action. If the Conciliator is able to rule at the conciliation they will issue with a certificate of outcome.
If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court.
Some disputes can also be resolved by referral of the dispute to the Medical Panel. Whether or not you should have your dispute referred to the Medical Panel is a complex issue, and depends on the circumstances of your particular case.
The Medical Panel can make binding determinations on issues such as whether you are incapacitated for work, whether incapacity is permanent and/or work related.
In some instances detailed written submissions should be made to the Medical Panel prior to a consultation with them to ensure relevant considerations are taken into account.Best is to seek legal advice prior to attending the Medical Panel.
Referring a matter to a Medical Panel
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by:
- A Conciliator at the Accident Compensation Conciliation Service.
- A court at the request of either party.
- By a WorkCover Impairment Benefits Officer at the request of a claimant who is disputing their percentage permanent impairment rating.
Any issue referred to a Panel must be a ‘medical question‘ as defined by the WorkCover legislation. Where there is a major factual dispute, this issue may often not be referred to the Medical Panel as it is more difficult for the Panel to decide factual disputes.
Should you seek for your dispute to go to a Medical Panel?
This is a complex issue. A decision of the Medical Panel is usually binding on the parties and a court is generally required to follow its decision. Therefore great care is needed in determining whether to refer a matter to a Medical Panel. If a claim for compensation is rejected or payments are terminated, an injured worker is sometimes offered a choice at conciliation of either referring the matter to the Medical Panel for a final decision or referring the matter to court.
Choosing between these two options can be extremely difficult.
- Firstly, the option of taking a matter to court is only a real option if, either you are able to afford to conduct litigation or a lawyer is prepared to run your case on a ‘No Win – No Charge’ basis.
- Secondly, it is important to recognise that even if you took the matter to court it may still be decided by a Medical Panel because the other party has made that request. If a request is made to a court, it has no option but to refer.
It is not possible however, to know the composition of either forum in advance! What can be said however is that when the broad spectrum of decisions of both bodies is examined – it is difficult to see any difference in the success rate of each! Speaking in general terms, both courts and the Medical Panel tend to provide fair and consistent outcomes.
I have personally attended the Medical Panel on four occasions and was extremely (overly) impressed with three.
What will happen when I attend the Medical Panel?
When a matter is referred to a Medical Panel for a decision to be made, it primarily involves a full medical examination of the injured worker to the extent relevant for a claim/your injuries. The Panel will be made up of a number of Medical Practitioners (usually 3 to 5) which will usually reflect “expertise” in the different areas of injury that a claimant has specified.
Medical Panel doctors display a high[er] level of independence. Their medical examinations tend to be very careful, professional and exhaustive medical assessments. Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many injured workers report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.
It is possible for an injured worker, usually through their lawyer (however, I have done it via email, alone!), to make a written submission to a Medical Panel about a matter. This usually only occurs if there is some particular or unusual aspect to the matter which needs to be drawn to the Medical Panel’s attention. If a written submission is made to a Medical Panel it is important to keep the submission very brief in order to ensure that it has maximum impact.
Usually you will receive, from the Medical Panel a “list of attachments” (medical and other documents submitted both by the insurer and your lawyer/self) well before your appointment. This is a good time to carefully go through the documents and see whether the insurer (as they often do) has omitted an important medical report, and if so, submit it to the Panel!I have, in the past, forwarded MRIs, video footage of surgeries, photographs of injury etc to the Panel, don’t be shy! You can also take them WITH you at the examination.
It is only natural for an injured worker to think that they have to argue their case when they attend the panel. All medical practitioners have various methods for checking the accuracy and consistency of the injured worker’s presentation.
It is important to resist the very natural tendency to want to make sure that the Panel understands the full scope of the effects of an injury. So, basically do not “over-do” it 😉
What the Panel is interested in, is the careful and precise analysis of very specific symptoms. A very accurate description of the symptoms, presented without any embellishment will mean that the Panel will conclude that the claimant is reliable and honest. It is normal for specific injuries to have symptoms in a very specific anatomical pattern. For example, the distribution of pain in a leg from a back injury usually will be quite localised depending on the level of the disc involved. Simply, asserting that the “entire leg is sore” will not be as effective as giving a very precise and accurate description of the specific areas affected.
The devil is in the AMA 4th Edition – not so much in the Medical Panel
Under the WorkCover legislation physical injuries must be assessed in accordance with the fourth edition of The American Medical Association Guides For The Evaluation Of Permanent Impairment.And that, folks, is the real sh*tty problem!
Although these Guides are now in their six edition, the WorkCover legislation requires the fourth edition to be used. Theyare just about 20 years old and they are banned in civilised countries!!!
Did you know that the AMA Guides state up front that:
- They do not — NOT — purport to be “scientifically valid and reliable”
- Impairment ratings in the guides are “merely ‘estimates’ of impairment” based on “consensus” not “scientific evidence”
- Do not apply to “every type of impairment”
- That “certain conditions (such as psychiatric reaction to pain) are not explicitly ratable under the Guides”
- Should “not be used for direct financial awards nor as the sole measure of disability; and
- Are based “not on science but on ‘legal fiction’, ‘consensus,’ and other unsupported assertions”
Yet, the VIC Government uses these American Guides, what US Courts have determined as, “arbitrary” percentages to a victim’s injuries.
Some REAL examples
Under the current workers compensation system the kinds of injuries that would be denied compensation include:
- vertebral fractures resulting in up to 25% compression with ongoing pain : 5-8% total body impairment rating!
- spinal fusion requiring multiple surgeries with ongoing pain : up to 14%
- surgically treated disc lesion with ongoing pain: 10%
- pelvic fractures with displacement deformity: 2-10%
- disorders restricting ability to walk up mild gradients and stairs, sit down in deep-chairs, rise to a standing position or walk long distances 1-9%
- brief repetitive or persistent alteration of state of consciousness or awareness 0%-14%
Not so long ago, a severely injured worker, Soula, posted on our blog that notwithstanding that she suffers from an extremely painful pudendal nerve injury (for which she even has a spinal stimulator inserted!) she scored ZERO percent impairment at the Medical Panel. Soula is unable to work and lives is debilitating pain!
Is this fair?
Yep there are good grounds for believing that the scores of the most common industrial injuries were deliberately lowered when the Guides were being developed in America. Nonetheless, significant impairment scores can be obtained under these Guides from the aggregation of all the effects of injury.
The Guides are highly complex and can provide markedly fluctuating impairment assessments when the same injured worker is assessed by medical practitioners. These fluctuations, in large measure, are due to the discretion that is provided to medical examiners in respect of choosing the appropriate methodology for some assessments, particularly involving limb function.
The psychological guides
Under the WorkCover legislation a psychological impairment must be assessed in accordance with the Medical Panel Guides for the Evaluation of Psychiatric Impairment which was developed by psychiatric members of the Medical Panel Victoria. The impairment assessment methods consider a number of levels of psychiatric or psychological functioning including the following:
- Intelligence – (capacity for understanding).
- Thinking – (the ability to form or conceive in the mind).
- Perception – (the brain’s interpretation of internal and external stimuli).
- Judgement – (ability to assess a given situation and act accordingly).
- Mood – (emotional tone underlying all behaviours).
- Behaviour – (behaviour which is disruptive, distressing or aggressive).
Under the WorkCover legislation an assessor is required to ignore, for assessment purposes, any psychological impairment that it is ‘ secondary ‘ to physical injury. This effectively means that where someone is injured in a traumatic incident, the assessor can take into account that component of the psychological condition which comes from the event itself (e.g. post-traumatic stress disorder) but must not take into account any psychological condition which is due to having sustained a physical injury. This is a highly artificial distinction which cannot really be quantitatively assessed. Nonetheless psychiatrists will make an apportionment under these Guides.
In order to be eligible for an impairment payment it is necessary to obtain an impairment score of 30% ‘primary’ psychiatric impairment. A primary psychiatric impairment can be combined with a physical impairment for the purposes of reaching the 30% threshold for common law damages claims.
The physical guides
Physical injuries must be assessed in accordance with The American Medical Association Guides For The Evaluation Of Permanent Impairment. Although these Guides are now in their 6th edition, the WorkCover legislation requires the 4th edition to be used. The Guides have been modified by the legislation which removes the pain chapter. The Guides have been heavily criticised because they provide relatively low impairment assessments for musculoskeletal injuries particularly spinal injuries. It appears that the most common industrial injuries were deliberately lowered when the Guides were being developed in America. However significant impairment scores can be obtained under these Guides from combining all the effects of injury.
The Guides are highly complex and can provide markedly fluctuating impairment assessments when the same claimant is assessed by medical practitioners. These fluctuations, in large measure, are due to the discretion that is provided to medical examiners in respect of choosing the appropriate methodology for some assessments, particularly involving limb function.
Frequently asked questionsThe conciliator in my case has made a direction, what does this mean?
When a dispute is referred to the Accident Compensation Conciliation Service, every attempt is made to resolve the dispute. In some cases, a Conciliator can issue a ‘direction‘, ordering the limited weekly payments of compensation or medical expenses be paid. When a direction is issued, it means that the WorkCover agent or Self Insurer must pay as directed unless they obtain an order from a court, usually the Magistrates’ court, authorising them not to pay.
A Conciliator can only issue a direction if he or she believes that the WorkCover agent has ‘no arguable case‘. If a Conciliator thinks that that the WorkCover agent has an argument, which is unlikely to be accepted by Court, they cannot issue a direction as the agent has an arguable case.
Many insurers will abide by conciliation certificates of outcome (derections), however it’s also quite common for insurers not to abide by the ruling, by for example stalling your entitlements. If this happens it’s extremely important that you inform your lawyer and that you put in an official complaint with WorkSafe for breach of conciliation. Workover Assist can also do this for you.I have been served with court papers seeking a ‘revocation of the direction’ what does this mean?
When a direction (ruling/certificate of outcome) is issued by Conciliator the case will automatically be reviewed by the legal Division of the WorkCover Authority. If the Division believes that it has an arguable case it will instruct its Solicitors to file an application to the Magistrates court seeking a ‘revocation‘ of the direction. This usually is done within 7 days of the Conciliator’s order.
If an application is lodged at the Magistrates court it is usually heard very quickly by the court. This can sometimes mean that a WorkCover recipient will be served with court documents listed for hearing on the next day or within a few days time.
This can be very distressing and cause unnecessary panic. If this occurs you should contact an expert WorkCover lawyer without delay. If you have a lawyer acting for you already, you should immediately contact him or her and advise them that you have the court proceedings. They will be able to represent you at court.
You will not usually be required to come to court as neither you nor your lawyer is required to prove anything to the court at this stage. WorkCover or the Self Insurer must prove that they have an arguable basis for disputing your entitlement. If the Magistrate considers that an argument can be presented by WorkCover, even though it will be unsuccessful in the long run, they must revoke the direction in order to provide an opportunity to the parties to present their case.
Will I be liable for legal costs for this revocation hearing?
No, you should not be liable for the legal costs of WorkCover or your own lawyer for this case. The WorkCover legislation makes it clear that you are entitled to have your legal costs paid irrespective of the outcome of the case.
A Lawyer is able to accept service of court documents on your behalf. If you have received a direction and think it is likely that WorkCover will apply to revoke that direction, you could advise the Conciliator that you have instructed a lawyer to accept service of the documents on your behalf. The Conciliator would then advise the WorkCover agent about that arrangement and this would avoid court documents being served on you at your home. Alternatively, you or your lawyer could ring the WorkCover agent and advise that your lawyer is authorised to accept documents.Can I appeal the decision of a Medical Panel?
The decision of the Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error. It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion. In order to appeal a decision of a Medical Panel, it is necessary to demonstrate that they have made procedural error. This type of appeal is very technical and must be made to the Supreme Court within strict time limits . If an appeal to the Supreme Court is upheld, the decision of the Medical Panel will be quashed and the matter sent back to the Medical Panel for a further decision. It is normal for the new decision to be made by different personnel at the Medical Panel. (see article: are Medical Panels binding?)
This article is dedicated to “itHurts” 😉
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[Dictated by WCV and manually transcribed on her behalf]