The trouble-plagued WorkCover rehabilitation system has paid one doctor $237,000 since April 2009, when the panels were introduced as part of controversial changes to WorkCover, says The Adelaide. WorkCover SA is paying about 9 million dollars per year to doctors to “assess” injured workers….
WORKCOVER is paying about $9 million a year to doctors to assess injured workers
The panels are responsible for determining if an injured worker has any capacity to return to work, with the union movement claiming they can be used to shift injured workers off payments at 130 weeks, arguing the doctors’ fees would be better spent treating injuries and re-training people back to work. The [SA] state’s WorkCover program has the nation’s highest levies and poorest return-to-work rate.
SA Unions – which opposes recent WorkCover changes – used Freedom of Information to uncover the costs of these panels, with state secretary Janet Giles noting the vast majority of referrals to the panels were made by WorkCover’s master contractor, Employers Mutual Limited (EML), in contrast to self-insurers who made little use of the panels.
“A major concern is that under the legislation (the panel members) are empowered to stray into areas that are non-medical, for instance giving advice to injured South Australians about the kinds of jobs they should be looking for,” Ms Giles said.
“Doctors are not necessarily qualified to know about the skills required for jobs, let alone whether vacancies for the jobs exist. While we have no problem with professionals being paid for their time, our problem is with the wrong-headed priorities of the Rann Government. These payments divert money that could be used for injured SA workers and are paid for from business levies.
“That money could instead be used to retrain injured workers and find them employment or better treat their injury so they can remain in, or return to their jobs.” Doctors are paid a minimum of $1200 per panel session; the FoI documents show 93 doctors sit on the panels with nine receiving more than $100,000 each. Ms Giles said workers were not represented at the panel sessions and a panel decision was final with no right of appeal.
The release of the FoI documents follows the release of an independent report into WorkCover by PriceWaterhouseCoopers actuary John Walsh, which was highly critical of the scheme, including EML’s management of injured workers.
WorkCover chief executive Rob Thomson rejected the claim the panels resulted in people being forced off compensation payments, saying they made independent decisions on medical matters in dispute.
“The expenditure on medical panels has no influence on the money spent or the funding available for the rehabilitation or retraining of injured workers in SA,” he said.
What is medico-legal medicine and what are medico-legal medical reports
Medico-legal Medicine is the interface between medicine and the law and usually requires a medical examination and the provision of a report.
Administrators/Legal professionals require medical information to make some decisions. Medico-legal reports may be used for resolution of claims such as in civil injury, medical negligence, or as part of a worker’s compensation or in the transport accident scheme.
Medico-Legal Medicine: Information exchange via medico-legal medical reports
Medico legal work requires a medical practitioner to provide assessment and advice, usually to enable the resolution of the administrative or legal action.
This may occur with the provision of the treating doctor(s) information via practitioner/specialist reports or requests for records. Interpretation of this information can be an issue.
Legal practitioners, although experienced in medico legal issues, are not trained to interpret the nuances in medical records and significance of clinical and investigative findings.
There are medical specialists who can provide expert advice on a disease or condition in the context of the legal proceedings. This is expert medical evidence.
There are also medical experts who specialise in preparing and undertaking medico legal examinations. This field of medicine differs from a specific medical expert who may be called upon because of their particular expertise in a field of medicine, to give an opinion regarding a particular disease or disease process.
Common issues in Medico-Legal examinations
‘Commissioning bias’ is when each party contracts their own expert witnesses who present evidence, either in a report or directly to the court, that favours the party that contracted them. These experts are often referred to as “hired guns”.
An example of this is the well demarcated opinions that exist amongst medical experts in relation to the issue of the work relatedness of carpal tunnel syndrome.
It is recognised that third-party examinations or medico legal examinations are also disproportionately represented in complaints.
Common complaints include that the examiner was rude or dismissive, or there was a lack of respect for privacy, or even worse that there was an exacerbation of the injury as a result of the medical examination.
The dynamics of a third-party examination contribute to these difficulties because it is not a therapeutic relationship.
When a patient attends a treating doctor there is an element of trust. The consultation is not adversarial and the doctor’s first duty is to the patient.
In a third-party examination the examining doctor’s first duty is to the third party who has commissioned the report. The consultation is not confidential and often the patient does not know what to expect from the consultation.
The introduction of an Expert Witness Code of Conduct into the courts, has assisted courts to deal more openly with the problem, and to ensure expert witnesses understand their obligations to the court.
The introduction of conferences between experts, who produce a joint report for the court on where they agree and disagree, has also helped eliminate some aspects of bias.
In Victoria the Government has established the Medical Panels system for answering ‘medical questions’ in relation to claims under the Accident Compensation Act 1985 (Vic) and disputes determining the threshold for access to the Wrongs Act 1958 (Vic) for claims for non-economic loss.
The function of a Medical Panel as defined in section 67(1) of the Accident Compensation Act:
“is to give its opinion on any medical question in respect to injuries arising out of, or in the course of, or due to the nature of employment…..”
Medical Panels – How do they work?
The process for convening a Medical Panel is straight forward and requires:
1. The Governor in Council approves a list of medical practitioners to be eligible to be appointed to a Medical Panel. The list consists of medical practitioners of different specialties with appropriate experience and peer credibility.
2. From this list, the Minister appoints a Convenor and Deputy Convenor.
3. The Convenor and Deputy Convenor appoint the doctors to a Panel for the medical questions that are referred to Medical Panels. The office of the Convenor is supported by both legal practitioners and administrative staff.
4. A Presiding Member of each Panel is appointed, who then has the responsibility for preparing an Opinion which answers the questions, and Reasons which explain the Panel’s reasoning behind its opinion
5. A medical examination is undertaken, generally conducted as joint medical examinations with the different specialties represented, at dedicated premises, and with one member of the Panel appointed as the presiding member.
6. A Medical Panel only exists for the life of the referral, until the Opinion is released.
Under the Accident Compensation Act, referrals to the Medical Panel can come from
Authorised Agents and Self-insurers
County and Magistrate Courts
Under the Wrongs Act, the Respondent can make a referral in relation to the Certificate of Assessment for purposes of considering whether the threshold requirement has been met.
Medical Panels as a Tribunal
1. The Supreme Court of Appeal in Victoria has ruled that a Medical Panel has the status of a “Tribunal” for the purposes of Administrative Law Act, 1978 – see Masters v McCubbery.
Final and binding decision
Amendments made to the Accident Compensation Act in 1997 determined that any finding of a Medical Panel, is final and binding on all parties, including the Courts. However recently, this has been debated.
As a result the only method of disputing a Medical Panel’s opinion is on the basis of an error in process, or natural justice under administrative law. That is, there is no appeal available on the merit of the case but appeal is limited to procedural aspects. If a Medical Panel opinion is quashed by the Supreme Court, it is referred back to Medical Panels and usually to a differently constituted Panel, for a further opinion.
There are approximately 4,000 Medical Panels appointed per year in Victoria, and only a small proportion of these cases are referred for review by the Supreme Court. The general consensus from the stakeholders is that this method of alternative dispute resolution of medical disputes , is effective, and certainly anecdotally, most claimants will frequently say that the medical examination that they have undertaken is generally one of the best examinations that they have undergone, irrespective of the outcome.
Impairment is the loss of use, or derangement of any body part, system, or function
Disability is the effect of the impairment on an individual
The same impairment in two different individuals can have significantly different disability – eg: loss of finger for concert pianist and labourer
For assessment purposes, impairment must be permanent
Despite the need to discriminate between disability and impairment, it is now a common approach in Australia to use a measure of impairment for purposes of compensation.
The American Medical Association’s Guides to the Evaluation of Permanent Impairment is utilised in various states in its various editions. In Victoria we use the fourth edition AMA Guides, whereas the fifth edition is used in other States.
The AMA Guides are currently published in the sixth edition, and although there are subsequent editions, they are not necessarily more advanced or better to use.
The Guides do have a degree of reliability and validity and when assessments are undertaken by appropriately trained medical practitioners. In Victoria all medical practitioners undertaking assessments using the Guides, are required to have completed a Ministerially approved course in the various modules.
Abnormal illness behaviour and Impairment Assessments:
Another feature of the third-party examination that is often discussed, is the concept of abnormal illness behaviour.
Other terms which have been used to describe this behaviour include ‘Inappropriate illness behaviour’ or ‘Functional Overlay’.
It is important to recognise that this behaviour is different behaviour from true malingering, which is a deliberate and conscious attempt to feign illness or disability for secondary gain, and also from psychiatric conditions such as hysterical conversion reactions and somatoform disorders.
An understanding and recognition of the impact of socio cultural differences, is important for the adequate assessment of impairment, when considering the presence or otherwise of abnormal illness behaviour
Abnormal illness behaviour may make the technical task of assessing impairment difficult, especially when range of motion is required for the assessment. However a skilled examiner can usually overcome some of the difficulties.
In conclusion although there has been considerable change and improvement in the interchange of information between law and medicine, there is a need for continuing dialogue and refinement of process.
There is also a responsibility of both professions to ensure that our lawmakers develop legislation and regulations that are fair and equitable.
[Source: Dr John Malios; Melbourne. Deputy Convenor of Medical Panels, Victoria]
Medical Panels are often used as a quick and rather cheap way to answer a “medical question” which arises in a WorkCover dispute. However, workers are not allowed legal representation at Medical Panels and a negative outcome for a worker can have far-ranging effects, including potentially preventing an injured worker from accessing compensation. Continue Reading…
As I mentioned earlier, I am in the process of attempting to get my final impairment assessment rated by a Medical Panel, for the third time in three years. However, whilst I have not received the formal Opinion of the Medical Panel, they surely already told me that they could not proceed and would have to suspend my impairment assessment yet again because of “injury not stable”… This after 7 years… Needless to say how demoralised I feel, the main issue being that I cannot commence a common law damages claim until such a time as I have had an impairment assessment. I am completely broke, live of food hampers and help of friends and really could do with a modest little “lump sum” just to get out of debt and perhaps to go and visit my family who lives overseas and who I have not seen since 2003! Anyway…
Documents – “relevant material” for the Medical Panel
Part of the Medical Panel process is that they allow the workcover insurance company and you (the injured worker) to forward to the Panel relevant medical “material”, as in medical reports, letters, x-rays, MRIs etc for consideration for the impairment assessment. It is after all very important that the Medical Panel has a good and accurate picture of what your injury is about, all the surgeries your have undergone, how the injury has impacted upon your life (i.e home help, taxi transport etc) etc.
Well, guess what: my workcover insurance company has been extremely selective in forwarding “relevant material” to the Medical Panel. I received from the Medical Panel a copy of a document called “Schedule of attached reports and other material” prior to the examination. This document shows a list of all the material that has been submitted by the workcover insurance company for ‘consideration’.
A. Relevant material forwarded by workcover for the psychiatry assessment
It is important to know that I was also to undergo a psychiatric assessment by the Medical Panel for psychiatric impairment (injury) as a direct result of the accident. Now, here is the bit where you have to hold your breath, the workcover insurance bastards sent only one (1) report from my treating psychologist dated 2005 (6 years old) for “consideration”! You’ve gotta be kidding! They of course deliberately omitted recent psychiatric reports (i.e. 2010, 2011), they even omitted all independent psychiatric assessment reports ( and I had no less than 5 in 2011)!!! All more recent letters and reports from my treating psychiatrist and GP were also not forwarded, of course not, because they all stated that I was extremely depressed and had been suicidal…
B. Relevant material forwarded by workcover for the physical assessment
For the physical assessment (impairment rating) workcover, hold your breath, sent only 1 report from my treating orthopedic surgeon, dated May 2011.
I have undergone 7 major operations and suffered many complications (including life-threatening ones), yet not one surgical report was forwarded for ‘consideration’. That I had transplants was also omitted. That the 7 surgeries failed was omitted too. That I suffer from severe CRPS (RSD) was not deemed “relevant” for consideration, so no pain specialist reports were sent. They did not even sent their own IME reports for ‘consideration’, of course not because even they wrote in their reports that “I have a useless limb”. WTF! I am shocked!
In addition I had undergone two recent MRIs, the last one in August 2011, which showed rather catastrophic deterioration and end-stage stuff… yet the MRIs were not even mentioned! That my surgeon had requested major surgery just in May this year was not deemed ‘relevant’ and was not disclosed. I am too shocked to go on, for the list is endless.
The worst possible fraud, cover-up from workcover re the Medical Panel
If the above is not enough to bang your head against a wall – read this bit,and you may just understand how I feel today…
After I had received the Schedule of Attached reports and other material from the Medical Panel I was of course beside myself and desperate to find copies of relevant material that I could submit myself to the Panel for consideration.
Unfortunately I did not have a copy of the most recent relevant documents, because the Medical Panel’s examination was scheduled at very short notice (10 days). My treating GP was unfortunately on holiday during that critical time and my treating surgeon was on conference leave. So, that left me with the only option: obtaining urgent copies of relevant material from the workcover insurance itself.
I emailed my case manager 6 times and explained 6 times the need and urgency of obtaining copied of various reports under the FoI Act. I also explained that my GP and surgeon were away and that I was unable to obtain the material elsewhere, urging them to expedite my request.
They (case manager) often will FAX or attach a scanned document in an email to me (i.e. request to attend an IME, denial for payment of something etc)…but here, well yes, they refused to email me a scanned copy of relevant material… And I did not receive any relevant requested material on time (via normal post) for the medical panel.
On the day of the examination I did inform the Panel that the workcover insurance had refused to provide me with any relevant requested material and pointed out the very selective material they had submitted. The Panel made a formal note and thanked me for letting them know.
I did manage to give them a copy of a recent MRI (the images) and an x-ray which I obtained at the hospital where I had them done, at least I had something and some proof. I also had some notes from my pain specialist whom I had seen the day before….
Anyway, to cut this horrible story short, after the Medical Panel’s examination I received yet another “Schedule of Attached reports and other material”, updated with my own provided material and an “email from the workcover insurance”…mmmhh… Obviously this was the bone scan or the bone scan request – alerting the Panel that I most likely have a bone infection and hence the Panel has suspended my impairment assessment based on “injury not stable”. Nice try workcover insurance bastards, you won again, and can keep your money -that I am entitled to-, a little longer…
When I looked at the schedule of attached reports, I noticed that there was one (1) report from my treating surgeon (15/04/2011) and one (1) report from my treating GP (30/04/2011).
I had asked for a copy of both these reports from the workcover insurance.
On 19 September, AFTER the Medical Panel’s examination I received a letter from the workcover insurance company re my request for access to the information I had urgently requested for the Medical Panel (above).
Well, I nearly fainted….
The letter states that – hold your breath- “…following a thorough and diligent search we are unable to identify or locate these documents..”
Now, the Medical Panel’s Schedule clearly shows that these two documents were received!!!!
So what the f**k is going on? Can you see to what extent these workcover insurance companies go to cover-up your injuries, to hide your injuries and to, in all probability, MAKE UP FALSE reports about you? This is absolutely outrageous and disgusting and this is happening to ME!
I cannot stress enough the uttermost importance to ensure that you obtain copies of all relevant medical documents pertaining your injury and that you scrutinise everything that is sent to an IME or a Medical Panel!
Medical panels have been established under the Workers Rehabilitation and Compensation Act to answer medical questions that arise when there is a disagreement or uncertainty about aspects of an injured worker’s medical condition.
When a person is referred to a medical panel, they will meet with and be examined by a panel of doctors who will then make a decision about the question(s) that have been referred.
A decision of a medical panel is final and binding on all parties.
It is extremely important that you are aware that the workcover agent (i.e. your case manager/injury adviser) will only send very selective material in support for your injury(ies) to independent medical doctors and the medical panel.