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
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.
The workcover legal case (NSW)
Patrick Stevedores Holdings Pty Ltd v Fogarty  NSWWCCPD 76 (18 November 2014)
- There are a number of troubling features about this case.
- 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.
- 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.
- These matters raise serious issues about Dr Casikar’s objectivity that warrant investigation into his status as a WorkCover approved impairment assessor.
- 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.
- 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.
- 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  QCA 311 at –; LVR (WA) Pty Ltd v Administrative Appeals Tribunal  FCAFC 90 at , , and –). 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.
- 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.
- 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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