Last week, NSW launched an inquiry into the possibility and feasability of a consolidated personal injury tribunal to resolve workcover disputes as well as CTP disputes. This was recommended by last year’s massive review of the NSW workers compensation system.
We receive a lot of questions re Comcare, particularly on how decisions can be disputed. Many Comcare decisions can be disputed, such as rejection of the claim, decisions to cease your benefits or a decision not to pay for certain medical treatment and/or pay you lump sum compensation for your permanent impairment, and even unreasonable decisions re your RTW.
The aim of conciliation in Victoria is to resolve disputes and avoid litigation. The injured worker can request conciliation if there is a dispute between the injured worker and the agent (insurer) and/or employer about the injured worker’s claim. What’s more, if your WorkCover insurer fails to respond to a request within 28 days you can also lodge a Conciliation.
In Victoria, if your WorkCover insurer makes a decision in writing that you disagree with you can appeal the decision at Conciliation. However, what many injured workers don’t know is that if your WorkCover insurer fails to respond to a request within 28 days, you can also lodge a request for Conciliation!
In a fairly recent (August 2013) scorching judgment related to a medical panel process, the Victorian Supreme Court has found an injured workers’ compensation dispute could have been easily resolved if the medical panel examination of the injured worker had been tape recorded.
The Supreme Court recently (March 2014) found that a Victorian Medical Panel for a workcover matter acted unreasonably by failing to let an injured worker explain alleged inconsistencies between the surveillance footage obtained from the worker and the worker’s reported medical history, symptoms and presentation. The famous ‘gotcha’ video showed the injured worker “moving freely”, and as a consequence the injured worker’s condition was no longer deemed “serious”. Again, this case, reinforces that our Medical Panels are also flawed and that they too can be prejudiced.
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 court of appeal handed down a decision in December 2012 concerning Medical Panels that may have wide ranging ramifications for all workcover recipients. In Kocak v Wingfoot Australia Partners Pty. Ltd. & Goodyear Tyres Pty. Ltd.  VSCA 259 the court was required to examine whether a prior Medical Panel decision was binding on a subsequent Court deciding an entitlement under the Accident Compensation Act (The Act).