In August 2015 the NSW Court of Appeal decided that NSW injured workers could not make more than one lump-sum insurance claim. In other words that injured workers could not top up their lump-sum compensation payment if their condition deteriorated. However, yesterday (Monday 26 Oct 15), the state government will make a new regulation to override that court decision in that case, known as Cram Fluid Power v Green.
In most Australian jurisdictions (states and territories), the American Medical Association Guides (AMA Guides) are the accepted assessment tool for injured workers’ permanent impairment rating. The problem with many AMA Guides (especially the older versions in use such as the AMA Guides 4th ed in Victoria) is that the rated impairment does not take into account the impact the impairment has on the injured worker. What should be measured is disability – that is, how the impairment really affects the injured worker.
With the recent rise in workcover, common law and civil claims involving alleged psychiatric injury, knowledge of how psychiatric impairment is assessed is critical to determining whether an injured worker is entitled to a lumpsum or general damages.
In September 2013, the Victorian Supreme Court determined that the Convenor of Medical Panels (in Victoria) cannot convene a Medical Panel to assess a psychiatric injury on the basis of a bare allegation in a statement of claim of a psychological reaction to a physical injury in circumstances where the injured worker (or his/her lawyer) has only served a certificate of assessment relating to a physical injury. So, in other words: no assessment will be undertaken without a Certificate.
The decision of a Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error.
The Bundaberg District Law Association has warned Queensland’s workers’ compensation system would plunge into deficit with the planned introduction of impairment thresholds. The Association also highlights the undeniable fact that impairment thresholds are arbitrary, unfair and utterly disregard the particular personal circumstances of an injured person.
A Western Australian injured worker (“S’) has been brave enough to share his workcover WA ordeal with us. He has currently lost all purpose and joy in his life, after his workcover WA insurer has denied his required (second) back surgery. The injured worker believes that the surgery may have been denied because he has undergone a permanent impairment assessment (at the advice of his lawyer), however he has not settled his case (yet). Any advise, help or guidance would be greatly appreciated.
More good news for NSW injured workers! In this recent (20 May 2013) legal NSW case, the Workers Compensation Commission’s verdict in the case of Di Matteo v RDM Ceramics Pty Limited essentially means that if an injured worker has made ANY type of claim before to 19/6/12 then he/she can still make a further claim for permanent impairment for that same injury.
At long last a ruling that challenges the integrity of permanent impairment assessments! This decision should be a bombshell for the NSW workers comp scheme – given the new laws allow insurance company case managers to make capacity decisions.
Getting through a permanent impairment assessment in Victoria is not as straight forward as many injured workers may think. There are – unfortunately – many dirty tactics routinely used by so called “independent assessors” (and of course the hand that feeds them, namely the workcover insurance) used to deliberately downgrade your permanent injuries, all in the name of insurance profits (minimising your payout/legitimate compensation).