Speaking in general terms, it has been said by Victorian senior lawyers and many Victorian injured workers that, when a matter (dispute) needs to be referred to a Medical Panel, the Medical Panel tends to provide fair and consistent outcomes; and that -unlike “independent” medical doctors (IMEs) – Medical Panel doctors generally display quite a high (or at least higher) level of independence….
Their medical examinations tend to be more careful, and more professional. 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.
However, it has lately come to our injured attention, that more and more Victorian injured workers have been disappointed by unfavourable decisions made by a Medical Panel, and that unsympathetic and, yes, biased, Medical Panel doctors appear on the rise!
Through our interactions with many injured workers, it appears that Medical Panel assessments and examinations are currently conducted much more hastily, less thoroughly and that more and more “reports” and “opinions” appear to be lacking rigour, and even evidence-based medical substantiation. “Reports” frequently contain spelling and grammar mistakes, omitted submitted medical evidence (such as medical imaging reports) and are becoming more akin to our, often, grossly fudged IME “reports”.
Could it be that our Medical Panels are under-resourced and overworked, given that disputation is on the rise? Or are we really starting to see explicit bias?
Take the following story of injured worker “S”….”Since when do the medical panel get away with we don’t believe the MRI results.” (what!!!)
Are our Medical Panels biased?
Whilst there are benefits of referring a matter (dispute) to the Medical Panel (i.e instead of Court), the risks of undergoing a Medical Panel assessment should be clearly understood and explained to the injured worker, including that any workcover “benefit”, such as approval for surgery, and any potential common law rights may also be affected by an unfavourable decision by an unsympathetic, hasty, or potentially biased Medical Panel.
Individual decision makers, whether at a Medical Panel or a Court, can have different views. This difference is, arguably, only natural for human beings. 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, biased or fudged Medical Panel. It is not possible however, to know the composition of either forum in advance!
A medical Panel examination – Injured worker “S” ‘ story
“Went to the medical panel as there have been two requests for surgery, Long story short knocked back by [the workcover insurer]. Submitted all the usual cr*p doctors reports and MRI results etc.
Great! Guess we have to open up our arms or limbs and show the problems inside.
Guess what this is getting appealed in a court what other proof can you give but MRIs showing the damage. Stupid people. This is what is stated on my rejection for surgery.”
(Note: “S” is suffers from serious injury(ies) and horrific complications – which we have omitted for privacy reasons).
It is not the first time we have heard from injured workers (and seen reports) who have undergone a Medical Panel assessment, only to find out that critical evidence was omitted or twisted. This ranges from reports containing something the injured worker did not say (i.e. complains of pain in a certain body part, which was never raised), to having crucial medical evidence missing or fabricated.
In such another recent case a seriously injured worker (>40 % WPI), who has a destroyed joint and needs a special total prosthetic joint replacement, a Medical Panel wrote that “there is no bone destruction” (of/in the joint) – written black on white – whereas the injured worker submitted his/her MRIs, X-rays, CT scans etc, showing a massive bone fracture (2 x 2 cm) of the joint, as well as end stage osteoarthritis AND advanced stage of bone rot (aka: avascular necrosis). The injured worker was assessed as “stable and stationary”, only to have his/her joint fragment (splinter into pieces) about 8 weeks later. This was foreseeable as the medical images clearly showed imminent collapse of the joint surface.
This clearly shows that none of the Panel doctors actually looked at the images provided, or worse, that they were unable to read a medical image!
Whilst we may – at a push- accept a “spelling mistake” (maybe) or an omission of a fracture (if it would not have made much difference in the assessment or its purpose), we were gobsmacked to hear that a supposedly professional medical panel, consisting of 3-5 “specialists” would be capable to write that “they (simply) do not believe an MRI” and get away with it?
We also know that many of our IMEs (both the ‘good’, and the ‘bad’) rotate through Medical Panels – so if you’re unlucky you can have a bunch of biased folks together, which may be the reason for the most bizarre opinion in “S”‘ case.
We also know that many Panels consist of doctors and specialists, not necessarily with expertise in the field of an injured worker’s injury. We often hear of injured workers who have been assessed by a “Rheumatologist” for example for a complex orthopedic injury? Or a “Neurologist”? If you are lucky you may have one general orthopedic surgeon on the panel, often one who has no experience in your type of injury (i.e a general orthopedic surgeon for a complex elbow or shoulder injury; or a shoulder surgeon for a complex knee injury)? Those unfortunates who suffer from pain syndromes such as CRPS never have a Pain Specialist on the Panel, yet their condition(s) are assessed by a “Rheumatologist” and/or a “Genereal Surgeon”.
In the case of injured worker “S”, s/he suffers – amongst other things- from an injury to the wrist/hand and submitted opinions from 5 doctors all saying s/he required further surgery to the wrist/hand area. They also stated s/he will lose all function on the hand, if the surgery is not undertaken within a certain time frame.
In this case, the Medical Panel was provided with all the reports and opinions (incl. imaging), and appear to have outright lied and also changed what the injured worker had said during the examination. On the Panel were two orthopedic surgeons and one Rheumatologist, who all “did the talking and writing”, says injured worker “S”.
Appealing Medical Panel Opionions
According to our legal sources, the decision of the Medical Panel (Vic) 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.
Appeals against the decision of a Medical Panel are only possible on extremely limited grounds. An appeal against the decision of a Medical Panel must be made to a judge of the Supreme Court of Victoria.
The time limits are extremely technical as an appeal can be launched either under the provisions of the Administrative Law Act or, alternatively, under the specific orders of the Supreme Court. Under the Administrative Law Act, the period can be as short as 28 days. (This period can be marginally extended more detailed reasons requested from the Panel and those reasons in fact supplied).
Under the orders of the Supreme Court the normal period for appeal is 60 days from the date of the decision. The Supreme Court, however, has a general discretion to extend this period where it is in the interests of justice.
We do also know that doctors from the Medical Panel(s) must now also provide detailed written reasons for their opinions/decisions. This is positive in the sense that the doctors really need to think hard so they can confidently explain in writing why they decided X or Y. : see the case: http://aworkcovervictimsdiary.com/2013/02/beware-that-medical-panel-opinions-decisions-are-legally-binding/
In “S”‘ case it appears the Medical Panel ” fudged” his/her report and clearly stated “they do not believe the MRI’s”.
It is believed an appeal can come from injured worker “S”‘s case, because the Medical Panel have “mucked up” his/her report.
According to injured worker “S”, the Panel also stated (in their report) s/he has pain in her/his elbows, and then( further down the report) stating s/he does not have pain in the elbows. The age of the injured worker the Panel wrote down is also totally wrong and from reading the report they seem to have mixed up this injured worker’s report with somebody else’s.
When the “medical mummies” (retired has beens) have finished there examination and notes then the girls type up the reports and then they are supposed to be sent to the medical mummies lawyers for them to read and put their bit in.
How many people have come across numerous typing errors wrong information and total cr*p, and, according to a paralegal, on these grounds you can appeal because these are legally binding documents that are wrong.
Especially if it can be proven that they have ignored MRI’s, – as in “S”‘case – in other words, if you have hard evidence.
To convince the courts, our paralegal says, all you need is what they have written on your report – clearly a lack of regard for our (medical) science and also when a signed document is wrong they must take a look again, these documents are legally binding.
As said before, mistakes on these documents go towards discrediting the Medical Panels and therefore are biased and false documents.
If your GP gets things wrong and you suffer because of it you have grounds to sue for medical malpractice, same rule applies here – it is a loop hole that we need to exercise to be able to do anything about this cr*p we are enduring.
This injured worker is writing to both Canberra and to the state of Victoria government to ask them how these Medical Panels can lie and get away with this – as this is a legally binding document.
In turn we could then send a detailed and substantial letter to our State Government, including the Minister for workcover and hopefully can get something done, as we believe this is purely criminal and- as injured worker “S”, we intend to get things changed. According to our paralegal, the courts have also had enough of these Panels not doing the right thing.
Other articles you may find interesting:
- Misinterpreting diagnostic tests, another dirty workcover insurer tactic
- Insurance doctors falsity injured workers X-Rays and MRI results
- Medical Panel examinations – beyond belief they are not recorded – Supreme Court Vic
[Posted on behalf of workcovervictim]
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