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.
“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).