10 Responses to “Any tips to find legitimately illegal IMEs and treatment of workers?”

  1. Some cases of interest in NSW re: Neurosurgeon Dr Vidyasagar Casikar and Allianz

    Patrick Stevedores Holdings Pty Ltd v Fogarty [2014] NSWWCCPD 76; 16 DDCR 92 (direct quote from paras 89-96 follows – search the case name on jade.io for a full copy)

    OTHER MATTERS

    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 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 [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.
    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.
    [end of quote]

    And again, in Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2 (direct quote from paras 59-63 follows)

    OTHER MATTERS

    Two further matters require comment. Dr Casikar expressed the view, in response to a specific question put to him by Allianz, that a three level fusion was not the “optimal treatment” for Mr Cairney. (The phrase “optimal treatment” was included in the question put by Allianz to Dr Casikar.) That is not the test in s 60. The test is whether the proposed treatment is reasonably necessary as a result of the injury. As explained in Diab v NRMA Ltd [2014] NSWWCCPD 72, “reasonably necessary” is a composite phrase in which necessity is qualified so that the treatment must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]).
    Reasonably necessary does not mean “absolutely necessary” (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [154]). If something is “necessary”, in the sense of indispensable, it will be “reasonably necessary”. That is because reasonably necessary is a lesser requirement than “necessary”. Depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments. A worker does not have to establish that the proposed treatment is the “optimal treatment” before it can be held to be reasonably necessary.
    It is most unsatisfactory that a scheme agent, such as Allianz, would ask a doctor such a profoundly flawed question in a case of this kind. This question, and Allianz’s assertion in its second s 74 notice that it was not clear whether the work related injury was “totally responsible” for Mr Cairney’s condition and need for surgery, demonstrated a fundamental misunderstanding of the issues involved in claims for medical treatment under s 60. That is most disturbing and a matter that should be addressed by the WorkCover Authority of NSW.
    The second matter that requires comment is the lack of any direct evidence from Mr Cairney. Though his history was recorded in the medical reports, and liability for his injury was accepted, it was unsatisfactory that he did not provide a statement setting out his views on the matters in issue. Though that omission has not proven fatal in this case, that will not always be so. It is important that, in cases of this kind, direct evidence be provided by the applicant worker about the history of the injury and why the claimed treatment is sought, as opposed to some other treatment.
    In summary, the conduct of the parties in this matter would not be a model to be followed in matters of this kind in the future.
    [end of quote]

  2. I truly wish I’d known of the complaints process years ago. After 4 years of dealing with all of the IME’s and having the insurer send IME reports to treating doctors I felt I was never going to be treated for my injuries properly and took a DIY approach. I amputated my own leg to relieve the pain. Nearly 2 1/2 years post self amputation I am able to do more and take less medication. Although I am still unable to get back to work, I don’t want to end my life anymore. I told the psychiatrist IME about 8 weeks prior to amputation and he never made comments in his report. I’m still assessed by IME to be less than 30% . Fact is WC is big business and when we get injured they actually just want us quit living and die. Luckily I had something to live for because the pain was to much for me to want to live. Until we have a way to raise up against them it will never be fair!

  3. I look forward to hearing from you.

    Tom

  4. Tip from an injured worker which I am passing on: I just want to say to anyone who has had to deal with a dodgy IME, REPORT THEM! If you are in QLD like me, report to Office of Health Ombudsman (OHO). In my case , my complaint was handed over to Australian Health Practitioners Regulatory Authority (AHPRA) . An IME is not allowed to comment outside of thier expertise, e.g. If your IME examines you for a back condition and says you have psycho-social issue preventing you from recovery and that particular IME is not a psychologist…. REPORT THEM!

  5. @Tom, definitely interested in talking more privately about this. I will contact you over the weekend via email (you can also contact me via contact form), and will discuss with a couple of great lawyers as well. Surely there must be something that we can do collectively.

  6. If you would like to communicate more privately on this topic, you are welcome to contact me directly via direct email.

    Tom

  7. @Tom, would love to hear more when you get a chance.

  8. I hear you. I believe the way to overcome come this.
    It is to the Unconscionable Conduct Route via the ACCC (I think it is), and have them investigated. It is Federal not State Government.
    Basically the Insurance Agents are not being held accountable to their own policies of how people are to be treated.
    The Lawyers here are part of the Bar Association and therefore part of the “system” and will not go against each other. It is also important to understand (if you don’t already) that whennthe matter gets to Court we are facing the Victorian WorkCover Authorities (Victorian Government) pool of Lawyers not Insurance Agents and their Lawyers, hence the “deep pockets” problem.
    Are you aware of the Victorian Government Model Litigant Guidelines ?
    Have you read the Victorian Ombudsman’s Investigation Into Complex WorkCover Claims and her 17 recommendations (15 to The Victorian WorkCover Authority and 2 to the State Government) ?
    I have more info on this at home and how it can be done. (I am away at the moment).
    There are some intermediate steps we can take however, especially with Mental Health Claims.

    Tom

  9. @Tom, I have on many occasions over the years talked to quite a few well positioned lawyers about this issue and about the possibiliy to bring a class action… to date it still seems not feasable. I need to find out the precise reasons… Guess we are against a giant -deep pocketed- insurance company, who will do anything to protect its own, incl favoured rogue IMEs. What a better way to cut genuinely injured workers off their rightful benefits? Especially the long term “low hanging fruit”cases?

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