Stabilisation of injury (aka Maximum Medical Improvement, or MMI), is a simple yet extremely important concept in every workcover claim. It refers to the point in your medical treatment beyond which you are not expected to get any better (or worse) by 3%. This is not to say that your medical treatment is finished but it’s aimed to maintain your current level of health and functioning. As an injured worker only gets to apply for a serious injury once it is important that the claim is not made prematurely.
You may have read a recent entry made into our “legal questions”section and noted the following:
Hello , I settled my claim a few years ago but my injury has not repaired and my insurer will not help, my settlement included ongoing medical as well as a payout. My question is can i have the case re-visited or make any other claim? I would not have settled if i knew i was going to be put on a disability pension and not able to work again.
Unfortunately this scenario is more common than you may think. It’s therefore extremely important to know that an injured worker only gets to apply for a serious injury once. Therefore you should never ever make your claim prematurely. Sadly for most workers, injuries frequently get worse over time and for the serious injury consequences to be fully apparent, it is often better not to rush these cases!
As we’ve highlighted in the past, sometimes it is worth waiting (a long time!) for “serious injury”!
Examples of Stabilised injuries
Example 1: Injury stable
An injured worker suffered a herniated disc in his lower back at work. This herniation causes not only severe pain, but also causes the injured worker’s legs to go numb off and on. The injured worker underwent surgery on his back, which successfully stopped his legs to go numb but he still has pain. About 12 months after the injured worker’s surgery, his own treating specialist concludes that another surgery would not relieve the injured worker’s pain and that the injured worker is as good as he’s going to get. The injured worker will obviously need ongoing (pain) medications for his back pain, will have ongoing physio, and will be permanently restricted from certain activities which could re-injure or aggravate his back. At this 12 months-point in time, this injured worker is said to have a “stable injury” (aka is at MM).This injured worker will obviously never be the same as before his workplace accident but his doctor (or for example a Medical Panel) has concluded that he has achieved the maximum level of recovery that medicine can provide.
It may be worth noting that in VIC an injury is considered stable when it is predicted the injury will not get better or worse, with or without treatment by 3% (WPI).
Example 2: Injury not stable
A worker slipped and fell in at work and tore his (shoulder) rotator cuff. The injured worker had surgery to repair his rotator cuff, but 6 months after the surgery, the injured worker still had a lot of pain in his shoulder and had a poor range of motion in that arm. The injured worker has physio and takes his medications, but he is still not improving, now 14 months after his injury. It turns out that scar tissue formed around his surgery site (causing a frozen shoulder) and a second surgery to remove the scar tissue is recommended. This injured worker’s injury is obviously not yet stable, as his doctor still believes that both his pain level and range of motion will improve after the second surgery, which the injured worker is keen to undergo.
Why does it matter if your injury is stable?
Having a stable injury or injuries is very important to a workcover case because you will have a permanent impairment assessment undertaken and may receive a lumpsum (in VIC) according to your level of permanent impairment (WPI). What’s more, you have only once chance at claiming for a ‘serious injury’ (in VIC either by means of the quantitative test – 30% WPI or more- or by means of the qualitative test). In addition, it allows the injured worker’s lawyer to predict your future damages such as lost wages and pain and suffering, should you be eligible for a common law damages claim.
Until your injury is deemed stable, a fair settlement value or jury verdict will be just about impossible to determine.
For example, the injured worker in “Example 2″ may have thought that he would only require one surgery to repair his torn rotator cuff. Had he undergone his permanent impairment assessment at the 12 month mark, and settled or closed his case, he would not have accounted for the significant additional pain and suffering and lost work time from his second surgery. His permanent impairment rating may have been very low, and his injury may even have been deemed ‘stable’ by an IME or even a medical panel!
Only when you reach “injury stable”, should you undergo a “permanent impairment rating,” which is a number, given as a percentage, representing the reduced functioning of your body. There are two types of impairment ratings, one for the injured body part and one for your whole body. For example, you could have a 15% impairment rating as to your right arm, and a 5% whole body impairment. What this means is that your arm is functioning at 15% less than it was prior to the accident, translating into your whole body functioning at 5% less (we pulled these numbers out of a hat — they are not from the official guidelines, the AMA Guides to the Evaluation of Permanent Impairment).If you have injuries to more than one body part, each will be allocated an impairment rating and the AMA guidelines will show how they are added together to reach a whole body impairment number.
Who decides when my injury is stable?
Your treating doctor (and you) and not your lawyer, should decide when you’ve reached maximal medical improvement. Remember, it’s maximum medical improvement, and may be maximum legal improvement!
Generally speaking, and at least in VIC, you can not undergo a permanent impairment assessment until 12 months after your injury.
An injured worker has 6 years (from the date of the injury) to lodge a serious injury claim in Victoria. As long as the worker’s limitations period is protected, there should be no rush to lodge a serious injury claim – unless of course the injured worker wants to.
Does having a ‘stable injury’ mean that my medical condition will not get worse?
No! It is quite common for injured workers who are at MMI to still be expected to get worse as time goes on. The most common example is someone developing arthritis in an injured joint. However, being at MMI makes it easier for your doctor to predict how your condition will worsen over time.
When will I be deemed stable?
Each injured worker’s case is different, but most doctors will not think about deeming your injury stable until at least 6 months to 12 months after your injury. It could be much longer, sometimes years in cases with multiple complications. This can be a source of great frustration with injured workers, who obviously would like to be compensated as quickly as possible after an accident. However, your lawyer knows that waiting until you are at MMI is the best way to ensure that you are fully compensated for your injuries.
Generally speaking you must wait at least 12 months from the date of your injury to undergo a permanent impairment assessment (and be deemed stabilised). Remember that you can always appeal a permanent impairment rating given by an IME, for example in VIC you go to the Medical Panel. An IME or Medical Panel can also be of the opinion that your injuries have not stabilised, and then your permanent impairment claim is suspended.
In my own case I underwent 1 IME and 4 medical panel impairment assessments before I was eventually deemed ‘stable’. Even then I deteriorated significantly and unexpectedly, however by then I had been assessed well over 30% WPI (so it did not really matter as I became eligible for a common law damages claim). However, had I taken the advice of my first lawyer, I would have accepted 19% WPI from the first (biased) IME permanent impairment assessment and ‘run’! In the end my WPI more than doubled, even though I had to wait several years (and be frustrated sick) to eventually have my case more fairly settled.
According to the online Claims Manual in VIC
126.96.36.199.tabilisation of injuries
The assessment of impairment can only be made when a worker’s injuries have stabilised.
AC Act: S104B Claims for compensation under s98C
WIRC Act: S196 Definitions – Claims for compensation for non-economic loss
WIRC Act: S197 Claims for compensation under Division 5
WIRC Act: S198 Division 5 claim cannot be made unless all proceedings under s328(2)(b) have been determined
WIRC Act: S200 Authority may suspend a claim
WIRC Act: S201 Authority or self-insurer to accept or reject claim
WIRC Act: S202 No proceedings by worker in relation to rejection of liability without certificate of Conciliation Officer
WIRC Act: S203 Assessment of impairment
WIRC Act: S204 Written statement of injuries
WIRC Act: S206 Variation by court or by agreement of decision under s201(1)(a)
WIRC Act: S208 No appeal from certain determinations and opinions
WIRC Act: S209 Minister may give directions
The legislation refers to the impairment made in line with the AMA4 Guides, Records & Reports, Chapter 2, section 2.3 General Comments on Evaluations:
‘An impairment should not be considered “permanent” until the clinical findings, determined during a period of months, indicates that the medical condition is static and well stabilised.‘
AC Act: S91(1) Assessment of impairment
WIRC Act: S55 When and how to make an assessment of impairment
Worker to be assessed by IIA
If the Agent is notified that the worker’s injuries has not stabilised by the time of the impairment assessment, the IB Specialist must:
- identify the injuries which are yet to stabilise
- request medical evidence from the worker’s treating practitioner to support the stabilisation of the injuries in question.
The Agent will only arrange for the worker to be examined by the IIA when all accepted injuries are confirmed to be medically stable.
For claims lodged on or after 18/11/04 claims
If the condition is not stabilised the Agent must within 90 days of receipt of the IB claim advise the worker if the Impairment Benefit claim is to be suspended. For details on suspension of an IB claim – see: Suspend impairment process.
If the Agent is advised that the injury / condition has not stabilised post 90 days from the date of receipt of the IB claim the Agent cannot suspend the claim. However, the worker must be advised in writing why a determination of liability and entitlement cannot be issued within 120 days of receiving the IB claim.
AC Act: S104B Claims for compensation under s98C
WIRC Act: S200 Authority may suspend a claim
IIA scheduled but worker has not been examined
If the Agent is notified that the worker’s injuries has not stabilised but they have already progressed the claim to have the worker examined by the IIA, the IB Specialist must:
- cancel the scheduled IIA examination
- request medical evidence from the worker’s treating practitioner to confirm when the condition/injury has stabilised.
The Agent will schedule a new IIA appointment for the worker when the accepted injuries has stabilised.
Worker attends IIA examination
To review the impairment report/s, the IB Specialist considers:
- impending surgical treatment, noted by the IIA in the report
- a treating practitioner request for further surgery
- IIA opinion that the worker’s injuries are not stable.
The Agent must communicate this information to the worker and request a medical report from the treating practitioner to confirm the stability of the injury in question and/or when stabilisation has been reached.
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