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Medical Panel examinations – beyond belief they are not recorded – Supreme Court Vic

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.

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Medical Panel acted unreasonably – Supreme Court Victoria

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.

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The assessment of psychiatric impairment

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.

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Medical Panel to only assess injuries subject of the Certificate of Assessment of Degree of Impairment

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.

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High Court Vic limits Medical Panel Opinions to specific circumstances

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. [2012] 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).

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Are our Medical Panels biased?

Speaking in general terms, it has been said by Victorian senior lawyers and many Victorian  injured workers that, when a matter (dispute) needs to be referred  to a Medical Panel,  the Medical Panel tends to provide fair and consistent outcomes; and that -unlike “independent” medical doctors (IMEs) – Medical Panel doctors generally display quite a high (or at least higher) level of independence….

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What to do when repeated independent medical exams are aggravating your psychological injury

Fact: many injured workers who suffer from primary and/or secondary psychological injuries, who are repeatedly sent to independent medical exams – IMEs- (or Medical Panels) have to go over the same information over and over again, regurgitating their (very) traumatic events, and in doing so are actually made sicker, setting back their chances at mental recovery. It’s happened to me, it’s happened to countless other injured workcover victims. A psychologist  advises injured workers to take the following steps in order to become a little more proactive and assume control over their independent medical exams (interrogations), recovery and rehabilitation.

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Medical Panels must provide clear reasons – Supreme Court Vic

A decision of the Medical Panel is usually legally binding on the parties and a court is generally required to follow its decision. Therefore great care and consideration is needed in determining whether to refer a matter to a Medical Panel. In February this year we posted an article titled “Beware that Medical Panel opinions & decisions are legally binding ” in which the Victorian Court (2012) 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 Court of Appeal found that it is binding.

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