Medical Panel or a judge?

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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.

A determination by the Medical Panel is final and conclusive and cannot be appealed against except in the rarest of cases.

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.

  1. 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.
  2. 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.
In making a decision about which option to pursue, it is important to take into account the nature of the dispute and the type of evidence that is available. It is also very important to consider the effect that a positive or negative Medical Panel decision can have on other aspects of your claim.
If possible, obtain advice from a lawyer about the merit of each option. Individual decision makers, whether at a Medical Panel or a court, can have different views.
This difference is only natural for injured workers. This can affect the outcome of a determination. The outcome from a sympathetic Medical Panel will be better than from an unsympathetic Judge. Conversely, the outcome from a sympathetic Judge will always be better than from an unsympathetic Medical Panel.

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.

The way in which an injured worker presents a Medical Panel examination is extremely important.

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!!!

The Guides have been modified by the legislation which removes the pain chapter – how SICK! Pain is NOT ratable! The Guides have therefore been the subject of significant criticism because they also provide relatively worthless impairment assessments for musculoskeletal injuries particularly spinal injuries.
The use of the AMA guide (4th Edition) is based on pseudo science and designed to do only one thing: to stop people — especially the most vulnerable  — from being fairly compensated.

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 questions

The 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.

Can legal papers for the “revocation” case be served on a lawyer?

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” 😉

Somewhat Related posts

 

 

[Dictated by WCV and manually transcribed on her behalf]

 



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4 Responses to “Medical Panel or a judge?”

  1. Thank you so so much for this excellent write up – you have answered so so many questions I had. I must say I am so impressed with this site, it is a God sent to me and many many injured workers. Keep up the wonderful work.

    In admiration.

     

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    injured person June 3, 2012 at 1:40 pm
  2. Thank you for the compliment 😉

    We are working hard behind the scenes and are adding – daily – handy resources and frequently asked questions (at the moment for VICTORIAN injured workers). We have just added a useful article in the context which may be useful: http://workcovervictimsdiary.com/can-i-claim-a-lumpspum-under-workcover/

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  3. Dear Workcover victim

    I thank you for your valuable information on the “medical panel or judge” facts transcript,This is very informative and most of all a good insight for my up coming medical panel examination.When this takes place I do not know as no indication has been brought forward to my attention as far.I never knew all this information about the AMA guide lines in regards to impairment in a legal binding legislation,nor did I ever ask my lawyer the full meaning of the transcript.I guess it
    never occurred to me to do so because i did not know or
    understand my rights to ask as this is the first time I’ve ever
    claimed workers compensation in my 20 years of work history.

    I truly wish it never happened to me and wish I could turn back time and never had to work for these people,I only did so because my career (chef) is a demanding one both physical and mentally challenging.I gave up from being a five star chef working stupendous hours just to have a life not working 60 + hours,and to start a family with my wife. My actions or if you like decision on leaving a promising high end career to start a family,working lesser hrs more suitable for our relationship also took a battering.This incident took place one and a half months before my daughter was born so one can only imagine what my family had to go through during this time.I am not a racist nor am I a hater of cultural differences,but now cannot stand the sight,voice,language or culture of my former employer and believe that they are all the same simply because I was a victim of their greedy unjust ways of exploiting workers for their own pockets.I’m truly sorry if any one is offended by my remarks although I have not stated whom I refer to.I don’t talk much to people about my problems but find this sight very comfortable for me to do so.I do not ask for sympathy,nor money just justice which these days seems a almost impossible task to achieve.

    This legislation is all for the employer not for the worker and our rights for a fair and safe working envIronment.Thank you and all for your support and kind words much appreciated.

    Kind regards
    Al

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  4. I just wanted to say Thank you for all the information on your page, it has answered some of my questions. I go in front of the medical panel here in Vic in two weeks. I am glad to be doing this finally, my accident happened 2 years ago and I have been run through the gauntlet ever since. The insurer stopped my payments in Nov and we went for conciliation 3 weeks ago, they still deny my payments so I requested to go in front of the panel. I’m not convinced that I made a good decision by reading all of this. I had spinal fusion a year ago and it was a fail, not only do I still be in a lot of pain, I also ended up with type 1 diabetes straight after surgery. I can barely do basic things around the house, the pain meds leave me very groggy and I can’t focus or remember anything. If I quit taking the medication then I will be in bad shape, but I’m in bad shape while I do take it. My sugar tends to run high because of the pain, so my endocrinologist is pulling his hair out trying to keep me regulated. I seriously pray that the medical panel see what I’m going through and will make them start paying me again. It wasn’t much money but it sure helped my husband pay the bills. My life has totally been turned upside down because of the accident at work, I’m 44 and feel twice my age. The insurance company act like I’m on holiday but this is no holiday I would want anyone to take. I hope there is hope if that makes sense.

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