Stabilisation of injuries – why extremely important

serious injury

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.

Be very very careful and make very sure (as sure as you possibly can) that your injury will not deteriorate.


 

According to the online Claims Manual in VIC

6.2.1.1.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: S199 Initiation of claim by Authority or self-insurer

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: S205 Worker to advise Authority or self-insurer of worker’s acceptance or dispute of decision as to liability under s201(1)

WIRC Act: S206 Variation by court or by agreement of decision under s201(1)(a)

WIRC Act: S207 Reference of dispute under s205(3)(a) or s206(3)(a) to Medical Panel

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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5 Responses to “Stabilisation of injuries – why extremely important”

  1. Psychiatric injuries are particularly problematic when it comes to judging whether a psychiatric condition (e.g. depression, PTSD) has stabilised. It would surely be difficult for a treating psychiatrist in particular to concede that the patient he or she is treating will not improve. Why then would he/she be treating the patient if not to attempt (some degree of) recovery? And mental illnesses and their treatments are notoriously inexact and unpredictable (such as in differing responses to the myriad choice of psychotropic drugs and e.g. ECT). The most I have come to expect from a psychiatric assessment is a prognosis of “poor” given that a patient’s condition or injury may be treatment resistant with poor responses to a lot of trialed medications. When an illness is reactive to work-related circumstances the logical expectation is that the patient will improve in the absence of those circumstances. This, however, is where the W/Comp system, and the commonly experienced betrayal of the injured worker by their employers, is at its most destructive. It can be so demeaning and dehumanising that it exacerbates the psychiatric injury and becomes the cause in itself. So the situation is very complex. Settling a claim can be an indicator for lifting of a depressive illness. But getting your psych to state this would be detrimental to your claim, and you need that stabilisation certification for a WPI assessment for common law. I don’t have answers but a compassionate and committed treating psychiatrist is worth his/her weight in gold. The truth is that while an injured worker is being kicked when down they will not recover from depression, anxiety, adjustment disorder etc. and a psychiatrist would not be remiss in stating that the worker’s condition, even though under treatment, has stabilised in that without closure the wounds will fester. Perhaps the test for stabilisation should be “likely to persist in the foreseeable future” (like with TPD claims). I see the issue of stabilisation (not gonna get better/not gonna get worse) from a psychiatric perspective to be quite problematic. GP’s also seem to have difficulties with this. Surgeons are loath to be negative about the results of their surgery after they’ve operated. Although degrees of mental impairment are set out in schedules it is, I think, very complicated and like with surgeons, falls to the treating psych’s views on recovery hence the vexing question of treating specialists and permanency/stabilisation. Is a treating psychiatrist conceding that a mentally ill worker cannot get better simply throwing in the towel? I would be very interested to hear from any injured workers who have had a whole person impairment assessment of a psychiatric injury that has been said to have stabilised for the purposes of a common law election.

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    • My previous comment is written in the context of the situation in WA.

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    • @Paragon, thank you for your most insightful comment with re to psychiatric injuries and the question whether or not it has ‘stabilised’ for the purpose of a permanent impairment assessment. It is indeed a most difficult situation, although in my own injured opinion, it’s also about ‘drawing a line’ at some point. As you said, if a psych injury does not get better (at least significantly) or (much worse) despite multiple treatment modalities (medication, CBT, etc) then I believe a prognosis of ‘poor’ should suffice for the purpose of a permanent impairment assessment, and only if and when the injured worker is not expected to endure additional ‘tormenting’, ‘set-backs’ or any other type of ‘crisis’ – whether from his/her underlying physical injuries or whether purely from a psych point of view. The key is indeed to have a sympathetic and smart treating psychiatrist and psychologist. I think when you become pretty intimately acquainted with your treating psychiatrist and psychologist (can be over many years), they generally are the best people to advice you what is in your own best interest – and sometimes this really means getting off the workcover system as fast as you can to stop the ill-treatment on the part of the insurer and/or employer. Then there is also the question on whether or not your treaters believe you could withstand a trial (court, e.g for common law). Many can’t, many would be catastrophically harmed by going to court and be x-examined by the defense, who use tactics that are so humiliating and hurtful it’s unreal.
      I don’t think a genuine and severe psych injury can ever be deemed ‘stable’ in the quantitative way, as inevitably ‘life after your accident’ itself can be an ongoing time-bomb.For example if you suffer from severe PTSD, you can expect a relapse now and then (or worsening) just because of certain triggers in your life, and some will always remain unexpected.
      I think the most important aspect is to remember that you will eventually undergo a permanent impairment assessment – read PERMANENT. This means that your psych injury will be permanent as in forever. Secondly one must remember that, at least in VIC, only primary psych injuries count towards WPI (and no secondary psych injuries) and thirdly one must remember too that it is very very difficult to meet the required threshold, which is a whopping 30% WPI in Victoria. It is rare to obtain 30% WPI for a primary psych injury. Which means it is hard to obtain a serious injury certificate in VIC for a terrible psych injury.

      The way I see it (and experienced it) is to weigh up your condition, and decide for yourself (with your treaters) whether a) you’ve had it (don’t think anything can make you much worse) and b) whether you have a little chance at improving or keeping the last bit of your sanity by closing you claim (getting off the sick workcover system which perpetuates psych injuries). If so,then go for your permanent impairment assessment (at least that’s what I did).

      The most important lesson I learned was that an IME psych permanent impairment assessment will almost always be biased. So appeal it (e.g in VIC go to the medical panel, where there will be 3 shrinks assessing you).

      One of us was assessed by a (notorious) IME as suffering from a miserly 5% WPI primary psych injury, and 25% secondary psych injury. Together they add up to 30% – equal lunatic house, however secondary psych injuries do not count towards compensable WPI (at least in VIC). IMEs are very quick to state your psych injuries are secondary, such as major depression, anxiety etc and not primary ones. Who are they (and who is anyone for that matter) to be truly able to distinguish what is primary and what is secondary? Nobody is able to, only the injured worker knows where his/her psych injuries came from!
      So that ‘one of us’ appealed the IME’s opinion that only 5% WPI was a ‘primary psych’ injury. Guess what, the medical panel saw it entirely differently and assessed this person with 25% primary psych injury and 23% secondary psych injury. It is worth repeating that (in VIC) only primary psych injuries are compensable (you’ll need 30% primary psych WPI for a lumpsum of around K70, and you’ll need 30% or more to be eligible for a common law claim, provided you can prove negligence – proving negligence is harder then people think – the question is whether it was reasonably foreseeable that you would suffer from a psych injury because of your employer’s action or lack thereof.)

      However a primary psych injury WPI will be added to a physical injury, and sometimes this is just enough to tip you on the required 30%WPI or more you get a serious injury certificate (and if there was negligence you may be eligible for common law).

      The only advice I can give to people suffering psych injuries is to study what is deemed primary and what is not, and to openly discuss this with your treating psych.

      Other articles of interest:

      http://aworkcovervictimsdiary.com/2014/01/assessment-psychiatric-impairment/
      http://aworkcovervictimsdiary.com/2013/04/when-has-the-employer-done-enough-to-avoid-liability-for-psychiatric-injury-claim/ (WA case)

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  2. Psychiatric conditions are not claimable in SA until July 1st 2015. As well as suffering a physical injury 5 years ago the resultant care (not) by my then employer and employers mutual resulted in my getting depression, anxiety, suicidal thoughts and suicide attempt. I am expecting a compensation payout soon ???, but that does not alter my depression etc. How can I explain stabilisation of my condition I cannot it goes round in circles, I may feel good in myself one day and the next day it feels like the world is coming to an end. I have been prescribed various types of anti depressant medications, been hospitalised and undergone ECT. I have a fantastic psychiatrist without whom I would not be here today writing this. His support has been paramount. My prognosis “poor” I have just been given a disability pension for psychiatric illness.

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  3. To add a spanner in the works, in NSW (not sure about other states) common law claims need to be made within 3 years of date of injury otherwise an application needs to be made to a judge for an exception. Many injury claims go over the 3 year limit because maximum medical improvement has not been reached and various other legitimate delays. If you meet the threshold requirement to lodge a negligence claim the insurer will always argue the 3 year statute limitations to prevent your claim going to court, even if the delays are caused by them (in part at least). WorkCover laws need massive reform. Talk about kicking you when you are down. Such unethical unfair legislation.

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