Workcover Insurer & IMEs behaviour ‘disgraceful’ and ‘seriously alarming’ says Judge

shame-on-you-allianz

The following article was submitted by “Bullied” as a Guest Post. The article focuses on a shocking, disgraceful, totally unconscionable recent legal case (NSW) that basically highlights everything that is wrong with the workers compensation system, including the insurer and the IME. The Judge in this case directed that the independent medical examiner (IME Dr Casikar) AND the workcover insurer (Allianz) both be investigated for their disgraceful and seriously alarming [mis]conduct!

Workcover Insurer & IMEs behaviour ‘disgraceful’ and ‘seriously alarming’ says Judge

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By ‘Bullied’

Dr Epstein recently complained that poor Independent Medical Examination doctors (IMEs) have to put up with being investigated because of complaints made by injured workers, well in this case it was the Judge who directed that the IME be investigated!! How dare the judge! 🙂

Read the judges summary points 89-97 first as it put it all in context.

Regards,

‘@bullied’

The workcover legal case (NSW)

Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76 (18 November 2014)

Link to the case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWWCCPD/2014/76.html?stem=0&synonyms=0&query=title(Patrick%20Stevedores%20Holdings%20Pty%20Ltd%20and%20Fogarty%20)

OTHER MATTERS

  1. There are a number of troubling features about this case.
  2. First, notwithstanding that every specialist in the case took a history that Mr Fogarty injured his back when the straddle crane he was driving hit a pothole, Dr Casikar (see profile on rateanmd) did not take that history. Instead, he seemed to have a history that Mr Fogarty’s symptoms started spontaneously at work with no provocation at all. Such a history was not consistent with Mr Fogarty’s evidence and was surprising, to say the least.
  3. Moreover, Dr Casikar’s assertion that Mr Fogarty’s symptoms could have developed at about the same time or the same stage of his life, irrespective of his employment, was unsupported by any reasoning and stretched credulity to breaking, bearing in mind Mr Fogarty’s age and the lack of degenerative changes in his spine, something that Dr Casikar expressly noted. The basis for Dr Casikar’s assertion is not clear. Moreover, Dr Casikar’s suggestion that the proposed surgery was for degenerative changes in Mr Fogarty’s back was inconsistent with the objective evidence and further undermined the doctor’s credibility as an independent medical examiner.
  4. These matters raise serious issues about Dr Casikar’s objectivity that warrant investigation into disgraceful-workcover-legal-casehis status as a WorkCover approved impairment assessor.
  5. Second, the general conduct of this matter has been seriously alarming. Notwithstanding Dr Casikar’s opinion, his report provided no proper basis for Allianz, viewing the matter objectively and fairly, to deny the claim. A fair reading of the history of the claim demonstrates a perfectly consistent story corroborated by complaints to first aid and strongly supported by all the treating doctors and by several objective investigations, namely, a CT scan, MRI scan and a positive discogram. Allianz had no proper reason for denying liability and should not have done so.
  6. Third, it is apparent that, notwithstanding the admissions made by Mr Taylor at the arbitration, Allianz has not paid the weekly compensation awarded to Mr Fogarty and has thwarted his attempts to have the surgery recommended by four specialists. Allianz is a fund manager under the NSW workers’ compensation scheme. It would (or should) have been well aware of its obligation to pay an award of the Commission for the payment of weekly compensation, which obligation continues notwithstanding the filing of an appeal under s 352. Its failure to do so in the present case is reprehensible and will be referred to the WorkCover Authority of NSW for investigation.
  7. Fourth, Allianz’s behaviour is all the more disgraceful given that it is obliged to act as a model litigant. That means more than acting honestly and in accordance with court rules, and more than lawyers acting in accordance with ethical obligations; it must be a “moral exemplar” (State of Queensland v Allen [2011] QCA 311 at [79]–[81]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [38], [39], and [40]–[42]). It is obliged to pay legitimate claims without litigation. Mr Fogarty’s claim was, without doubt, a legitimate claim that should have been paid without the need for litigation. Why it was not paid should also be investigated.
  8. Fifth, the amendment of the award of weekly compensation could and should have been achieved by the application of the slip rule (s 294(3)), something that Mr Trainor sought to do in his letter of 22 August 2014. It is unsatisfactory that Allianz did not accede to that request, as it would have avoided the need for an appeal. That should also be investigated.

CONCLUSION

  1. This appeal was without merit and should not have been filed. Mr Macken’s submissions were unsupported by any authority and completely ignored the way the arbitration proceeded and the clear admissions made by Mr Taylor. I can only assume that it was filed in an attempt to make Mr Fogarty bow to the insurer’s desire that he accept voluntary payments rather than an award.

 



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10 Responses to “Workcover Insurer & IMEs behaviour ‘disgraceful’ and ‘seriously alarming’ says Judge”

  1. I am shocked (NOT!) to read to what length Allianz and it’s chosen/preferred grossly biased IME went to try to deny this poor injured man’s so obvious injuries, isn’t this just outrageously criminal? Thanks God for a great Judge with high morals and clever enough to see through this -all to often occurring- ‘scheming’ !
    Thank you so much ‘Bullied’ for sharing this case.

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  2. Thank you for this …

    The mention of the model litigant requirement is exceptionally significant. This is something that all litigants in workers compensation should note and put together evidence on – ie insurer/insurer solicitor behaviour that withholds, misleads, etc – it is contrary to the middle litigant requirement

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  3. Praise the Lord, someone see’s these animals for who they are.

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  4. Hello, What a Fantastic Result For This Man !! And In Fact All Injured Workers , About Time These Lying IME’S And Case Managers Were Exposed , We Have Put Up With There Crap For To Long !!! Ruining Family Life , Sending People Broke , I Just Hope On Monday That I Get a Similar Result At VCAT !!!
    Reading About The Win At Court Has Made My Day !!!

    kevin

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  5. Thank god a Judge with Common sense and Empathy, this needs to be sent to CGU Sydney in particular- The Case Managers there are beyond a nightmare to deal with

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  6. It is heartwarming that this result has occurred. There are decent judges around, I remember one who threw the book at GIO for denying me one day of worker’s compensation after I had been assaulted at work – GIO said that was a normal event for the type of job I was doing, hardly!!! When you have the adversarial system we have and when there is virtually no accountability on the private companies involved like Allianz, then what happened to this poor man will be the norm rather than the exception.

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    • Hi I also had a Allianz claim and a determination was made at the WCCC.

      BUT…..the rate of my weekly pay was based on the transitioned rate of $452

      My back pat should had been at $932 but Allianz lawyers dictated thus ANd as a resultMyBack pay of over 26 weeks was around $10k + lesser.
      I am now getting paid the correct rate but any advise on how to raise an appeal thought WCCC as the issuer says I sifne off on the determination end of story

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      • Give WIRO a call to ask for them to advise you. It seems to me if you signed off you may not have much hope of changing anything however if the insurer placed you under duress to sign or if you had no legal advice or if the insurer did something illegal such as outright not giving you the right amount as the legislation determines then you might be able to do something. Write an email to your case manager asking how the amount was calculated to see if it was calculated properly. You can also ring WorkCover 131050 to ask for claims help to ask them how such amounts are worked out. There are formulas for this. It will all depend on how long after you were injured you made the claim to get back your wages. If you were under the old legislation you would have an entitlement to 26 weeks on full pay then you would have gone down to the stat rate. Under the new legislation it is 95% of your wage for the first 13 weeks then down to 80% of the weekly wage. Anyone who is transitioned from the old legislation goes to 95% of the transitional rate (around $900) and down to 80% of the transitional rate. I am 100% not sure about this but WorkCover can give you the correct rates. You will need plenty of information and an understanding of how the amount is meant to be calculated if you want ammunition to fight the insurer on the grounds they have acted inappropriately in determining the amount. If they did act illegally then WorkCover or WIRO may get involved on your behalf. You can also contact the Injured Workers Support Network in NSW. Go to their website to get contact details.
        Good luck!

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        Bashed and bullied February 26, 2015 at 10:24 am
  7. What a fantastic outcome but obviously one in which the injured worker’s WorkCover journey to gain a just outcome would have been physically and mentally stressful.
    I had never heard of the term ‘model litigant’- certainly when I had an injury and the scheme agent was Allianz I was shocked at the level of non-disclosure and other tactics used to deny / minimize treatment costs.
    I am sure many such stories remain untold and don’t reach a judicial level.

    I think too that legitimate claims are denied and scheme agents rely on a tactic of wearing the claimant down. I had a denial of liability once a request for surgery was made. It was overturned by the insurer and I was told by my government employer this rarely happens. In my ‘Request for a Review’ all the documentation I submitted, the insurer already had on file.

    I think my tenacity eventually wore them down and they realised I wouldn’t roll over. Also, it was obvious that their legal team knew they would have no leg to stand on if it went to the WC Commission.

    So much for model litigants/ scheming agents.

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  8. I live in S.A. I have written here a few times but I would like to mention that I had an impairment assessment late last year for a secondary injury as EML could not find any documentation on the claim. The assessor does up to 80 IMEs per month for EML and the outcome was in my favour, so not all IMEs doctor are liars. So EML rejected it.

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