GENERAL ADVICE – AUGUST 2018

When To Appeal A WorkCover Tribunal Decision

WorkCover usually requests a so-called Independent Medical Examination (IME) prior to forwarding a claim to the Tribunal for determination and prior to settling a claim.

There has been a tendency for WorkCover to secure opinions from occupational physicians on injuries of an orthopaedic nature. Occupational physicians are ill-equipped to properly assess orthopaedic injuries, their seriousness and their sequelae. Claimants can be disadvantaged by this ineptitude.

 

Injured workers do have the option of securing an external second opinion. I have seen many occasions where this has been a worthwhile exercise and whilst it does add extra cost to the process, I am inclined to recommend it if doubt ever exists.

If the second opinion agrees with the first opinion, so be it. Alternatively, if the second opinion is diametrically opposed to the first opinion, one of the two opinions is incorrect. A third opinion may be necessary.

 

I am always determined to remain objective and removed from the emotion that surrounds a WorkCover claim. I am also equally determined that fairness and equity are supported. If a plaintiff feels that he or she has been hard done by, the requesting of a second opinion is a very useful first step.
The Question and Answer Corner

I regularly receive feedback from this newsletter and questions are sometimes posed. Whilst I always write to the correspondent, I can see value in sharing the questions and the answers that emanate. Here is a sample:

Dear Dr Morgan

I specialise in personal injury law and regularly have claimants who have suffered severe injury with consequent losses of income and lifestyle. Many of them are in desperate need of financial help and are tempted to resolved claims early. My fear is that by doing so, I may be selling them out too cheaply. When is the “correct” time to send them along for a medicolegal examination?

Yours sincerely

EJL
Dear EJL

Thank you for writing to me. The fact that you read the newsletter is encouragement in itself.

I sympathise with your circumstance. I was a personal litigant over forty years ago. I remember it took six years for my claim to come before the Court. The new CLA and PIPA have expedited the process considerably but as you quite correctly point out, there is a risk that we may assess people too soon and that the true extent of the injury or illness may be unrecognised.

Orthopaedic experts often talk about the concept of “Maximal Medical Improvement”. This means that although the patient remains in a suffering state, he or she has reached their zenith and any changes thereafter will be in a downward direction.

Unfortunately, there is no exact or precise time but most patients with a cervical spinal flexion/extension/acceleration injury (the so-called whiplash injury) will have reached a peak by 18 months following the incident. If they are still symptomatic at that time, they are likely to remain symptomatic. Patients who have undergone an amputation and require prosthetic fitting are usually stable within 18 months or 2 years of an injury and similarly, patients who have had spinal fractures, pelvic fractures or lower limb fractures will also have declared their hands within a similar timeframe.

Muscle strains, ligament injuries and other soft tissue pathologies can usually be assessed within 12 to 18 months.

If in doubt, call your expert. A ten minute chat on the ‘phone can usually give a relatively accurate indication of when it is appropriate to send the patient along for the important medicolegal assessment.

Yours sincerely

David Morgan

Dear Dr Morgan

My client recently attended a specialist for a medicolegal report. It appears that she found it particularly distressing. She left the specialist’s consulting room and called my office from her mobile telephone. She was exceedingly distressed, crying and almost incoherent. It appeared that the specialist had been particularly rude and gruff, that the entire examination took no more than 20 minutes and references were made to her physical appearance that could be construed in no other way than being off a sexual nature. She was asked to completely disrobe without any attempt at privacy and there was no chaperone present.

Is this the standard that my clients can expect?

Yours faithfully

AB

Dear AB

No! Setting aside the length of the examination (and there is no set time), there is no excuse for rudeness and neither can professional misconduct of this alleged nature be countenanced. Not only is the sequence extraordinary, it demands immediate reporting to AHPRA and the Queensland Board of the Medical Board of Australia. This type of unprofessional behaviour is totally unacceptable.

The AHPRA Queensland office can be contacted on 1300 419 495. I would recommend that you call immediately.

Yours sincerely

David Morgan