“I feel that my story should be out there stating that I have been unjustly done by both the WorkCover Insurer and the Medical panel”, writes injured worker “R”. In essence “R” suffered a back injury and a hip injury, the latter discovered some months after the accident. The insurer accepted liability for both his back and hip injury, and even paid for “R”‘s first hip surgery. However the insurance company refused liability for further hip surgery, based on both an IME and a Medical Panel opinion who indicated his hip injury was not caused by his accident at work…Go figure!
The following “Guest Post” submitted by “Mad Chef” highlights that Independent medical exams (IMEs) are among the most disputed components of our troubled workcover system, and offers some tips on how to challenge an IME/insurer’s decision (in VIC).
When surveillance material (e.g video) is sent —by the workcover insurer— to an Independent Medical Examination doctor (IME) or a Medical Panel for commentary/opinion/assessment, basically the surveilled injured worker is entitled, by law, to explain (alleged) “inconsistencies” between the surveillance video and the injured worker’s medical history/restriction.
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.
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).
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….
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.