If you have a WorkCover claim, and the WorkCover insurer has made a decision that you don’t agree with, it is important that you know that you are allowed to challenge this decision. This can include denial of medical and like treatment, even denial of requested surgery. In this article you will find some useful resources to help speed up the decision-making process, as well as dispute and complaints avenues.
We have recently been contacted by a couple of seriously injured workers regarding their workcover injury permanent impairment claim. Most are confused about the process and many are quite shocked at the low monetary value put on their case/injury. Some don’t know whether they should accept the lump sum, or take their case to conciliation (and/or a medical panel). Perhaps it’s time we summarised the permanent impairment claim process in order for injured workers to better understand the process and what to expect.
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).
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.