High Court Vic limits Medical Panel Opinions to specific circumstances

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The court of appeal handed down a decision in December 2012 concerning Medical Panels that may have wide ranging ramifications for all workcover recipients. In Kocak v Wingfoot Australia Partners Pty. Ltd. & Goodyear Tyres Pty. Ltd. [2012] VSCA 259 the court was required to examine whether a prior Medical Panel decision was binding on a subsequent Court deciding an entitlement under the Accident Compensation Act (The Act).

The Court of Appeal found that it is binding. This means that any Medical Panel decision about a workers entitlements, such as whether they suffer from a particular injury, and whether that injury is work related, is binding on any future Court hearing matters arising under the Act. This includes statutory benefits and Serious Injury Applications. Whilst it may be beneficial to the worker where the Panel decides in their favour, if it is an unfavourable decision it may effectively strike out a worker’s common law entitlements.

Workers were therefore told to exercise great caution before referring a medical dispute from conciliation to a Medial Panel. The benefits of referring a matter to the Panel remain, however the risk should be clearly understood that any potential common law rights may also be affected by an unfavourable decision.

Because of this, the Court of Appeal also decided that in providing their opinion, doctors of the Medical Panel must provide detailed written reasons for their opinions.

This case was  appealed to the High Court in October this year and the High Court now thankfully  limits Medical Panel Opinions to specific circumstances!

High Court Vic limits Medical Panel Opinions to specific circumstances

The High Court of Australia has recently considered whether a decision of a Medical Panel relating to one part of a worker’s claim is binding on all other parts of their claim, including lump sum payments.

In 2012, the Court of Appeal of Victoria found that a Medical Panel Opinion would be binding on any medical question under the Accident Compensation Act. From a worker’s perspective, this raised particular concerns that an adverse Medical Panel finding may bind a worker in a future Serious Injury Application and therefore prevent a worker seeking access to damages for pain and suffering and lost wages.

The decision was appealed to the High Court and judgment was handed down on 30 October 2013.

The High Court found that a Medical Panel Opinion is only binding on the question or matter that goes to the Panel and not any other matter or question that arises under the Act. For example, if the worker’s dispute about medical and like expenses is referred to the Panel, the outcome will only be binding in respect of that particular dispute concerning their medical and like expenses.
The Court also found that an adverse Opinion is not binding on any future Serious Injury Application and does not prevent a worker from pursuing their potential common law entitlements.

Great news indeed for Victorian injured workers!

 

Post dictated by WCV and manually transcribed by T on behalf of WCV]

 



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16 Responses to “High Court Vic limits Medical Panel Opinions to specific circumstances”

  1. can someone tell me what is required of me when i join the commonwealth rehabilitation service.

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    • @blah blah blah – can you be a little more specific? Are you referring to Comcare? And to be eligible for a rehab plan?
      Commonwealth — Comcare

      Legislation

      Safety, Rehabilitation and Compensation Act 1988
      Seafarers Rehabilitation and Compensation Act 1992

      General Information

      The Comcare website provides important information in relation to Commonwealth legislation and rehabilitation.
      The Commonwealth workers’ compensation scheme and the Seacare scheme recognise the importance to both the employee and employer in achieving a return to work as quickly as possible.
      The SRC Act and the Seafarers Rehabilitation and Compensation Act 1992 promote this through processes and incentives such as the requirement for employers to provide suitable duties for injured employees, payments of rehabilitation expenses and compensation payments. The employer has the primary responsibility for the rehabilitation of injured employees and may engage an approved rehabilitation program provider to deliver a customised rehabilitation program for the employee.

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      workcovervictim3 November 22, 2013 at 9:42 pm
    • @blah blah blah

      CRS was initially formed to look at assisting returning service men and women find employment following WWII.

      CRS has a lot different functions. It depends on your role. If you are a psych, you will be interviewing injured workers and unemployed people, to ascertain their strengths – aptitude testing, suggest possible retraining or possible future employment opportunities, labour market analysis etc.

      It would be like any other rehab type service. CRS consultants can be fair minded and genuinely want to help or can be pricks. Of course, you would have to answer the totally biased questions from lawyers (from both sides).

      I suppose it is up to you if you want to be a good guy or an arsehole.

      Or alternatively, if you are a typist, I image you would be required to type 🙂

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      • My claim has been rejected pending the magistrates court I am receiving an old age pension (I am not older than 50) my treating doc asked crs to take me on and I think they are being unethical once again I have been asked to bring all evidence scans etc to the crs and they told me they won’t fund any training for me which is what my doc asked for and their trying to make me do my pre injury work is this suspicious or what? Should I walk away I fell I have just entered the dragon again in another goverment beuaracy

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  2. @Blah blah blah,

    Anything that CRS do with you would form part of your case. The insurer would be able to seek a court order for access to their records. Your lawyer would be able to claim privilege and withhold any parts of your CRS that do not relate directly to your upcoming court hearing.

    Someone gave me advice once – keep yourself focused on the main game and the outcome you are seeking.

    Your GP is the key. CRS cannot force you to do anything outside of the restrictions he/she has written on your medical certificate.

    I would be asking my GP more detail or double check his referral to CRS.

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    • Thankyou FU_CGU much appreciated

      I am going to give them nothing i smelt a rat the minute i signed over to them,
      yet i have not signed any agreements with them so far,
      my GP recommended retraining in a new line of work to CRS.

      CRS told me i will be taking my pre injury employment immediately (and there will be no courses or anything offered either i am told) or they are going to see to it that i’m booted off Centrelink immediately.

      I will not be railroaded by you CRS another narcissistic bully in the winds by the look of it.

      Boyyyyyyy is this whole thing getting damn messy now 2+ years on! Looks like theres a storm a brewin i’m a battening down the hatches now full speed ahead into the wind!!!!

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      • @blah blah blah,

        Go get ’em!

        It doesn’t matter if you bend over backwards, the bastard insurers will throw everything at you if your injury is not resolved within 3 months (6 months at a stretch) – because they have already lost their bonus for an “early return to work”

        It maybe a strong head wind that you are sailing into, but take solace in the fact their are many others who have sailed the same course before you.Members of this blog and forum will always be here to give meaningful feedback to others in varying stages of their WorkCover journey.

        Stay strong and use this blog to vent, yell and scream if you need to get it out.

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  3. Hi I have been reading post on this site for a few weeks I thought for a long time that it was my PTS for my suspicions from my employer / Insurance company I still not sure who of the two are the worse and that it was all in my mind that they have been using mind games that I alone was being put through this type of unfair behavior they even have had me filmed while going doing everyday activities(which is creepy to say the least) to try and push me out of work cover. I found this site from a friend who also has a work cover claim told me about this site

    This is interesting as my lawyer told me that when all my Doctors agree my pts has stabilized that I see another IME again….. and he would review me and then if he didn’t say I was 30% affected which is a rare thing for pts I would be going through a medical panel and most times people do not reach the 30% rate from the panel but we could still go forwards with our common law case against my work?

    ( Oh maybe it because they still reach a number so that’s why we can still go further in the process as he said that it was not a uncommon thing for my type of case for it not to find in my favor but we could still move forwards ?)

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    • @ptsd_workcover_victim,

      Welcome to the forum.

      PTSD is a bastard – speaking from personal experience.

      It took about 2+ years for mine to stabilise and then the games with the insurer’s IMEs started.

      It is really hard with all the provocation from case managers, the surveillance and lying IMEs to stay calm and there is no chance of any improvement with all the bullshit flying around.

      The insurer will do anything to provoke you and get your angry. BECAUSE if you demonstrate anger, then they will describe you as an angry person and “that” is your problem – not the PTSD.

      Whatever you do do NOT let them get to you. Use this blog (& the forum) to vent and let off steam. We understand the frustration and many of us suffer from anxiety and stress disorders.

      The WPI %age thing is really hard to predict. You have to trust your lawyer to source honest and fair IME psychiatrists with a balance view as the insurer will use the lying unethical and low life pieces of shit IMEs to say there is nothing wrong with you.

      Depending on what State you are in, the threshold WPI% varies from 5% to 30%.

      Stay strong, visit here often and take some comfort a lot of us know exactly how your disorder affects you (in general terms) and the tactics of the fuckheads in Workcover.

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    • PTSD has only just been included in the recently released DSM V, the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, and all IMEs will still diagnose “Adjustment Disorder with ….”. Adjustment Disorder should only last 6 months and disappear after the source of the stressor is removed, so after 6 months, the IME will diagnose it as “chronic” adjustment disorder. Most IMEs are not up to date with the latest international research and studies. Their opinions can be challenged.

      An assessment for impairment can be done when your condition has stabilised, so not usually accepted before 12 months from the date of injury. You do not need a lawyer to lodge an impairment benefits claim. It is a form that is completed and lodged. If your relationship with your employer has broken down, you can lodge the form directly with WorkSafe and not send to employer for signature. There is a section under the Act to cater for by-passing the employer. Yes you can still pursue a Common Law claim without reaching the criteria for Serious Injury Certificate, however be aware that this can be a long and very stressful journey. You will need a lawyer for this, but be very cautious before signing a fee agreement. Take the contract away and scrutinise it. Contact legal aid if you have questions. Try to have separate contracts for each matter undertaken, that is separate each matter the law firm is acting on. Separate the Impairment benefit contract from the Common Law matter so that you can decide whether to continue pursuing litigation after each matter finalises and fees are invoiced for each matter separately. You may find that you are unable to continue and do not want to be legally locked in. You may not like how the firm handled the impairment benefit claim, so why be locked into the long Common Law claim?

      Also be aware that impairment benefits claims are partly subsidised by WorkSafe, so whether you are successful or not, the law firm still “wins”, so do not accept excessive fees just to lodge the impairment benefits form. Also make sure that you understand the the law firms’ “disbursements”, because you may be liable to pay these even if you do not receive a payout. Make sure the contract states the lawyer that will be doing the work, since junior lawyers and senior lawyers’ fees can be substantially different. Make sure any fee agreement you sign is clear and where you stand regarding your out of pocket expense. You have a right to negotiate the contract with the law firm. If you are not happy with the terms, interview another “no win, no fee” personal injury firm. First appointments are free, so shop around and do not let yourself be treated like an injured pushover, as it will not help your condition. Unfortunately many lawyers do, some unintentionally, because they are not qualified to be dealing with people with psych injuries, so can traumatise the people they are supposed to be helping. Be wary of firms who are pushy and trying to get you to sign on the spot, with the usual “you have seven days to get out of it”. So why rush then right? Take the contract away, get help understanding the jargon if you need to and make sure you now exactly where you stand before signing. The last thing you need is more stress. There are many bottom feeders in the scheme, so use one of the symptoms of PTSD (hyper-vigilance) to your advantage!

      You can also look into a TPD claim with your super fund provider. This is another form that needs to be lodged. It does not require a lawyer, and if you prefer to use a law firm, make sure it is a fixed fee agreement, including all disbursements.

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      Power to the people November 25, 2013 at 4:51 pm
  4. thank you for your comments unfortunately I have already signed with a lawyer and am so low that I think I really need him to check everything I do as I seem to miss a lot I did look into two different ones I did sign a no win, no fee personal injury firm. I will look into the TPD claim but check to see if I did sign something with my lawyer all ready as I looked over the two I had and went with the one that seemed the better.
    I really don’t want to say how long for as you can imagine I am quiet sure they are trying to hack my online accounts from information my online accounts say someone has tried to gain access to them and trying to see what I get up-to online so I am very careful not to put to much information out there directly about my case.
    But my case has been going for well over a year now and I am so tired of their tactics and behaviors the only thing I haven’t yet lost is my temper and thanks for that I keep trying to keep it in check. But finding out that I was followed has really worn on me and I am sure that is why they have done this up till now I been very open with them but now I am going to be so quiet with communication as they do not have my best interest at heart and never did.

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  5. @ ptsd_workcover_victim,

    I used to struggle with the surveillance and it really pissed me off and I started to follow the PIs around to piss them off!

    After 3 years, I have learnt to ignore them more and more. I’m not doing anything wrong so fuck them!

    I read another post tonight on this blog about physical surveillance of those with psych injuries proves nothing. It’s true. What physical evidence can be gathered for being fucked up in the head?

    I suspect that in psych cases, the insurer uses surveillance as a means of attempted intimidation. BUT, if that what they want to achieve, then give them the opposite reaction.

    I recently saw a PI that I haven’t see for a few months. As he walked by I simply said to him “..I haven’t seen you for a while – nice to have you back on the case”. He didn’t know what to say. Fuck him.

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  6. FU_CGU

    Amazing that you can identify the PIs. How many times have you been surveilled? If its that often that you recognise them, you should lodge a complaint with the Privacy Commissioner. Are you renting? If you are and your lease is up, consider moving! I know of one injured worker who has moved a few times and not provided a new address, and the last surveillance report showed photos of the wrong person!

    Yes I agree that “activity” surveillance of psych injured workers is pure intimidation, and proves nothing, but insurers are also using the surveillance to compare what injured workers state during IME assessments. Not that depression can be disputed just because an injured worker is filmed at a cafe with company and perhaps smiling, but something as minor as that will be shown to IME as selective “evidence” that the worker is not suffering depression. Has the injured worker stated they never leave their home – then video of them going to the supermarket or walking their dog will be used. The injured worker will be branded as “misrepresenting” their injury on the most pathetic grounds. In their desperation to close files, it’s good business for the insurer to spin the slightest non-issue into a major event.
    The videos taken by PIs are edited so that only the parts that can be used against the worker are included. If for example, the injured worker stopped at the park while walking their dog and sat down, started crying or showed distress, it would probably be edited out or the insurer would not disclose this to the IME. These PIs have to produce (emphasis on “produce”) results to ensure their firm gets repeat business – and it’s a very dirty business!

    On average these PI companies charge $50+ per hour for their surveillance reports, so insurers will try to get as much bang for their buck as possible.

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    Power to the people November 26, 2013 at 2:22 am
    • @Power to the people

      The Workers Comp system is the way it is. For me, I need to focus my energy on dealing with my injury and my case and fight only the battles that I can win – for the moment.

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  7. I have now been told that because my initial claim was rejected them accepted i have forced them to accept the claim. they now are paying me an old age pension and tell me to shut up and take it, because they had a medical panel reject my first claim relying on a biased doctor davidson from melbourne they refuse to accept any new claims on that basis, a picture is being painted for me now.

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