The Supreme Court recently (March 2014) found that a Victorian Medical Panel for a workcover matter acted unreasonably by failing to let an injured worker explain alleged inconsistencies between the surveillance footage obtained from the worker and the worker’s reported medical history, symptoms and presentation. The famous ‘gotcha’ video showed the injured worker “moving freely”, and as a consequence the injured worker’s condition was no longer deemed “serious”. Again, this case, reinforces that our Medical Panels are also flawed and that they too can be prejudiced.
Medical Panel acted unreasonably – failed to allow injured worker explain video surveillance
In March of this year, the Supreme Court found that a Victorian Medical Panel for a workcover matter acted unreasonably in finding an injured worker no longer had a serious back injury based on the famous “gotcha” surveillance footage, conducted by workcover.
The Supreme Court subsequently ordered that the injured worker’s injury be reassessed by a different Medical Panel.
Background of the workcover case
The injured worker (a nurse) suffered a serious back injury in October 1985, for which a workcover claim was accepted. Her condition worsened over the years and in April 2012, the injured worker was advised by a neurosurgeon to undergo further major back surgery.
Needless to say that the injured worker’s insurer – Xchanging (in particular a very nasty case manager well known to us) took the “opportunity” to reassess the injured worker’s injury, by means which included surveillance. The case manager (*) actually took it upon herself to downgrade the injured worker’s whole person impairment by about 10% involving – of course- a biased IME.
The injured worker was found she no longer suffered a “serious injury” (a whole person impairment – WPI – of at least 30%), and decreased her weekly payments.
(*) On 4 April 2012, the employer’s claims agent rejected a request made, on behalf of the plaintiff, by Mr Andrew Morokoff, a neurosurgeon, for a 3 level ‘extreme lateral interbody fusion’ or XLIF procedure. The claims agent considered that the procedure was not a reasonable medical expense. Further, as the plaintiff’s whole person impairment was assessed at 20 percent, the employer’s claims agent determined that the plaintiff no longer had a serious injury and gave notice reducing her weekly payments. (Cited from the full text of the case)
The injured worker appealed the insurer’s decision and the matter and was ultimately referred, via conciliation, to a Victorian medical panel, which basically agreed with the insurer (and therefore the employer The Royal Melbourne Hospital) and assessed the injured worker’s WPI as 27% (downgraded).
The Medical Panel was shown a surveillance video, which showed the injured worker “walking, bending, handling a bag in and out of a car, and moving freely at all times“. The Medical Panel therefore was of the (legally binding) opinion that these seemingly “free movements” were “inconsistent” with the injured worker’s medical history, her symptoms as well as her ” presentation” during the medical panel’s medical examination.
The Medical Panel also stated that the injured worker, when (allegedly) confronted with the surveillance video, “did not provide an explanation for this discrepancy”. (emphasis added)
Court: Review of the Medical Panel’s decision
The injured worker sought – through her legal team (Shine Lawyers)- a review of the medical panel’s decision. Her legal team argued that the Medical Panel had failed to give the injured worker a reasonable opportunity to view and comment on the surveillance footage.
The Court (meeting 2012) heard that the Medical Panel had referred to the video surveillance, but that they had not shown her the footage. A month later she was shown the video footage in a separate assessment, but stated that the (Medical Panel doctor) “played most of it on fast forward and did not ask [her] any questions when the film was running“. Furthermore, the injured worker said that she was “cut off” by the Medical Panel doctor before she could explain that she was taking (pain) medication and having a “good” day at the time the surveillance footage was taken.
In their argument, the injured worker’s employer (and of course its insurer) stated that the Medical Panel was entitled to find the injured worker’s comments at the December 2012 Court meeting “amounted to a reasonable opportunity to explain the range of movement observed in the video, which did not amount to an explanation for the identified discrepancy”.
However and thankfully, the Supreme Court (Justice Dixon) found that the injured worker was “afforded an inadequate opportunity to put her explanation forward“. Justice Dixon stated that:
“Her explanation is relevant to understanding the apparent differences between the range of movement of which she was capable on clinical examination and that of which she was capable when under surveillance”
“I consider it clear that those apparent differences were significant for the assessment of her impairment.
“The panel arrived at its conclusion in breach of natural justice because had they heard the [injured worker’s] explanation when it was sought, it may be that they would not have come to the same conclusion in respect of the assessed whole person impairment.”
We sure hope for some natural justice by the next Medical Panel!
You can read the full text of the legal case here: M v Barton & Ors  VSC 78 (17 March 2014)
ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Workers’ compensation – Medical panel – Surveillance video used by Panel – Worker not afforded an adequate opportunity to explain what the video apparently showed – Finding of strong tendency to somatisation based on no clinical evidence of relationship between allergic reactions and accepted back injury– No evidence supporting finding of that tendency – Further finding that Panel had made no finding about that relationship – Finding unreasonable or irrational – Panel’s opinions quashed – Medical questions remitted for reconsideration by fresh panel – Accident Compensation Act 1985 s 68.
Somewhat related articles
- Workcover surveillance: filming longer to avoid ‘good day bad day’ argument
- Sneaky video surveillance gotcha moment squashed by good day-bad day argument
[Post dictated by WCV and manually transcribed on her behalf]
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