Since my earlier article Panels Panels Panels Oi! Oi! Oi! there have been some developments with the SA Government proposing the abolition of Medical Panels in that state, but I am yet to see anything to persuade me that properly constituted Medical Panels cannot be better at determining disputed medical issues than a traditional legal process.
I have recently become aware of a website civilforensicpsychiatry.com.au run by Dr Michael Epstein, a Melbourne-based psychiatrist. This site provides guidance to IME assessors, particularly psychiatrists.
Dr Epstein is an advocate of Medical Panels and has had considerable experience as a panelist himself. Victoria has had a long running system of Medical Panels. It is useful to read his perspectives on this subject.
While the blog is freely accessible, the comprehensive resources available through the site are only available to members. The resources include a book ‘A DIY GUIDE TO CIVIL PSYCHIATRIC ASSESSMENT’. There is a $100 ‘life-time’ fee to access the web resources. You also receive a copy of the book.
I have previously referred to an American book ‘Writing and Defending Your IME Report” and expressed my disappointment that there was no discussion about fairness or avoiding bias in the book. Dr Epstein’s book has an entire chapter devoted to ‘Problems with Expert Witnesses’ and discusses the issues of bias and partisanship. There is also discussion about the AMA Guides and their limitations.
Dr Epstein points out that in Victoria there is a consistent approach to impairment assessment in the various jurisdictions within Victoria, but questions whether it is possible to have a national system. See his latest blog post Is a national WorkCover system feasible? While the focus is on psychiatry and Victoria it is a useful read even for non-psychiatrists.
PANELS PANELS PANELS OI! OI! OI!
Insult and Injury 
Peter, thanks for directing me to this useful link. But I continue to have considerable difficulty in coming to terms with the concept of psychiatric impairment rating scales. Why are otherwise intelligent and rational clinicians prepared to reinforce the outdated view that soma and psyche are somehow independent and measurable entities? I know that Victorian psychiatrists do their own thing to appease the bureacrats who administer the schemes but surely they (and psychiatrists in other States) can find more productive ways to benefit society.
I can’t speak for other states but in Victoria, Medical Panels, for the most part, work effectively. Some 5,000 medical issues are dealt with by the Medical Panels in Victoria each year. Given the number of requests for referral by plaintiffs lawyers themselves and referrals initiated by the court, this indicates that all sides generally have faith in the system.
The alternative is both the plaintiff and the defendant armed to the hilt with their respective medical “experts” going into court to slug it out and a judge left to adjudicate. This is hugely expensive for the parties, not to mention the enormous drain on court resources and hence the tax payer, and results in time wasting side-shows within the context of the greater legal proceedings or issues.
Where surrounding circumstances, credibility issues and factual issues etc are in dispute between the parties then medical questions are better left to be determined by the court, and in Victoria this is the case.
No system is ever perfect and can always be improved on. But there is always a danger in the argument that it didn’t work in this specific case so therefore the whole concept is flawed and does not work.
So given the overall positive experience of the medical panel system operating in Victoria, does anyone know the reason why the South Australian authorities are proposing to abolish Medical Assessment Panels?
I don’t know much about medical panels in South Australia or the reason behind the call for their abolition.
However, I do know that Medical Panels in SA are solely a creature of the workers compensation system, and this is a big difference compared to Victoria. And this point of difference probably has much to do with the general faith in the medical panel system by all sides in Victoria and them generally being regarded as effective in their role.
In Victoria Medical Panels are not a creature of the workers compensation system but are also used in relation to the Wrongs Act. The Wrongs Act is the main legislation in Victoria governing claims for damages for personal injury in Victoria, in cases not involving work injuries or transport accidents. So everything from personal injuries in public liability cases, medical negligence etc, so the types of injured parties that can potentially go before a medical panel are vast and broad ranging just as the opposing defendants in these cases are equally a broad ranging group and not just WorkCover.
In Victoria “medical panels” don’t just equal = injured worker vs. WorkCover
And this has probably lead to the wide acceptance of medical panels and them generally being regard as effective in their role.
I would have more concern or apprehension of bias by a Victorian medical panel if I was an injured patient being referred to a medical panel in a medical negligence matter than I would as an injured worker in a workers’ compensation matter.
Equally, the fact that plaintiffs have as much right or access to request a referral to a medical panel as does WorkCover (or any other defendant in non work injury matters) has probably also lead to their wide acceptance in Victoria.
Plaintiff lawyers are well aware of the advantages of referral to medical panel when it suits their clients case nor are they adverse to using request for referral to medical panel (or the mere intimation of) as a definite legal strategy – there is nothing like the intimation of referral to a medical panel to bring an insurer or other party playing hard ball to the negotiating table or risk an adverse binding opinion of the medical panel.
Macky, thank you for providing this valuable information. In Western Australia, like South Australia, Medical Panels are convened by the Director of WorkCover WA. The WA Branch of the AMA was charged with performing due diligence prior to forwarding the names of potential panel members to WorkCover WA. I am not sure just how well the AMA (WA) discharged this responsibility but I do know that the initial list contained a number of medical practitioners who did not have the confidence of injured workers. Knowledge of their hard-line biased approach to those with compensable injury was readily available to them through the Injured Persons Action and Support Association. I would hope the situation has improved since then.
John – very interesting. I don’t agree with the AMA short listing candidates; that would be like the Law Institute short listing the judiciary for all judicial appointments. God forbid what you would end up with!
In Victoria, the relevant Minister appoints the Convenor (chosen from the list of appointed Medical Panel members) – so the Convenor is a medical practitioner.
The medical practitioners on list of members, for the purpose of constituting Medical Panels, are nominated by the Minister on the recommendation of the Convenor and appointed by the Governor in Council. You routinely see adverts by the Convenor calling for applications or expression of interest of suitably qualified medical practitioners.
The Convenor convenes a Medical Panel and determines the members that are to constitute a Medical Panel based what he considers to be appropriate in each particular case.
If the calibre of the pool of medical panel members is questionable then that fault lays with the medical profession itself. If the best and the brightest in the medical profession don’t want to put themselves forward and contribute by making an expression of interest to the Convenor to be appointed, then only the bottom feeders of questionable skill will be left to pick from to do it.
Macky, I must say that I was appalled at how the Medical Panels were being convened in WA. In the end, I removed my name from the WorkCover list as my services were rarely called upon. But it does seem that there is no shortage of doctors willing to serve on these panels. They are well remunerated for their services, regardless of their skill level.
Thanks Macky. That is very useful commentary and explains a lot about the differences between acceptance of panels in various states. Clearly a Convenor needs to be a medical practitioner who is above sectional interests. Do you think it makes a difference if the convenor is a general practitioner or a specialist? General Practitioners are used to deciding which specialists are appropriate to suit a particular case, whereas a specialist Convenor might see the composition of a Medical Panel through the prism of their own specialty. My own thoughts are that a General Practitioner is probably better as a Convenor, everything else being equal. I note the current Victorian Convenor has a background in General Practice. Has that always been so?
Peter – I knew the current Convenor had a General Practice background – only because in the past I had seen the post nominals after his name.
Until you raised it, I can’t say I have ever thought about why that was, or what the background of the Convenor should be or the advantages of them being a GP as opposed to a specialist. I’m a lawyer not a medical partitioner so I could not really give you any intelligent view on the matter, but as you explained it, I would have to agree with your rationale for why it would make sense for the Convenor to have a background in General Practice as opposed to being a specialist. No doubt there will be a document floating around on some Victorian government website that will confirm the required background, skills and experience the Convenor must have and whether it is a requirement/mandatory for them to have come from a general practice background.
Whilst I can’t answer your questions definitively whether it is a requirement for the Convenor to come from a general practice background, I vaguely remembered the names of the past Convenors that were the Convenors in the 90s/00s, googled their names and yes they were both General Practitioners also.
So it would appear your thought process and rationale is correct – as there clearly has been preference in Victoria for someone from a general practice background to be appointed as Convenor, but as I said whether it is mandatory or not I don’t know, but it would appear so.
I just wanted to add my 2 cents worth re the Victorian Medical Panels. They are not all that rosy.
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….
Their medical examinations tend to be more careful, and more professional. Indeed many injured workers report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.
However, it has lately come to our injured attention, that more and more Victorian injured workers have been disappointed by unfavourable decisions made by a Medical Panel, and that unsympathetic and, yes, biased, Medical Panel doctors appear on the rise!
Through our interactions with many injured workers, it appears that Medical Panel assessments and examinations are currently conducted much more hastily, less thoroughly and that more and more “reports” and “opinions” appear to be lacking rigour, and even evidence-based medical substantiation. “Reports” frequently contain spelling and grammar mistakes, omitted submitted medical evidence (such as medical imaging reports) and are becoming more akin to our, often, grossly fudged IME “reports”.
Could it be that our Medical Panels are under-resourced and overworked, given that disputation is on the rise? Or are we really starting to see explicit bias?
We also know that many of our IMEs (both the ‘good’, and the ‘bad’) rotate through Medical Panels – so if you’re unlucky you can have a bunch of biased (not so independent) IMEs (or bottom feeders) together!.
We also know that many Panels consist of doctors and specialists, not necessarily with expertise in the field of an injured worker’s injury. We often hear of injured workers who have been assessed by a “Rheumatologist” for example for a complex orthopedic injury? Or a “Neurologist”? If you are lucky you may have one general orthopedic surgeon on the panel, often one who has no experience in your type of injury (i.e a general orthopedic surgeon for a complex elbow or shoulder injury; or a shoulder surgeon for a complex knee injury)? Those unfortunates who suffer from pain syndromes such as CRPS never have a Pain Specialist on the Panel, yet their condition(s) are assessed by a “Rheumatologist” and/or a “Genereal Surgeon”.
…
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 Victorian Supreme Court Justice David Beach said a board of inquiry had identified the need to record police interviews with suspects – to avoid “endless disputes in court about what was actually said” – in the mid-1970s.
It was “unfortunate that almost 37 years after… we are still having such disputes – albeit in a different field”, Beach said.
Justice Beach also stated:
Medical panels and their opinions pervade in large numbers of cases brought under, or in accordance with, the provisions of both the Accident Compensation Act 1985 and the Wrongs Act 1958. Often in these cases, the decision of the relevant medical panel will finally determine rights. Further, the decisions of medical panels are required to be adopted and applied, and accepted as final and conclusive, by courts.[27] In a steady number of these cases, there is a complaint made by the person examined that the medical panel has failed to take into account the relevant history given to it. In these circumstances, it is almost beyond belief that medical panel examinations are not recorded in such a way as to eliminate the potential for disputation over what was actually said or not said during the course of an examination. The routine failure to record these examinations is wasteful so far as the parties’ resources are concerned and so far as the scarce resources of this Court are concerned. Much of the time and expense involved with the conduct of the present proceeding would have been eliminated if the examination of the plaintiff by the medical panel had been recorded.[28] And as I have said, this case is not unique in that regard…. See: http://aworkcovervictimsdiary.com/2014/05/medical-panel-examinations-beyond-belief-recorded-supreme-court-vic/
you dont speak for me or doubt most injured workers
Ive been in the Vic workcover system for 9 years, been to 5 medical panels, last one in feb this year, each i was treated with respect & kindly and the docs on the panel was through and ended up supported the views of my doctors and not the bias ime’s that cgu sent me to.
so i dont agree that they are biased and now plotting against injured workers. Ive seen ur web site thing and its wall to wall negativity & attracts only nutcases suffering persecution complexes, you wld see persecutors under any bed
Thanks David – it is not clear from your comment which website you are criticising – it sounds like you think the WorkCover Victim site is unfairly critical of Victorian Medical Panels – is that correct?
Has a study ever been undertaken to critically analyse the various opinions given by medical panels in any of the Workers’ Compensation jurisdictions?
sorry doctor i was talking about that crazy website workcovervictim, they are critical of the entire world, nothing they say is balanced or positive, ever. Nothing and no one is spared from their negativity, everyone and everything is plotting against them, bullying them and persecuting them, no one is spared…..claims agents, workcover, lawyers, the government, insurance companies, banks, financial institutions, corporations, the media, rupert murdoch and News ltd, liberal party, courts, private investigators, their own doctors, their own lawyers, employers, coworkers. no on that website will ever be happy with anything, i think they critise anything that works or is fair cause they then cant play the victim. As my lawyer said not to look at that workcovervictim website as they only spread negativity and misinformation that causes unnecessary angst & distress amongst injured workers.
i dont agree with workcovervictims picture painted of medical panels, not from my experience & that web site dont speak for all injured workers. their reports have a spelling mistake in them. wtf!! who cares. and just cause you got an ‘unfavourable decision’ how does that mean the panel is biased and now plotting against all injured workers. did know the role of the medical panel was only to give favourable decisions. Some go in your favor some dont.
i should have said one of the medical panel decisions didnt go my way, only a minor issue but. It was a medical dispute about amount of home assistance. The docs on the panel were respectful, listened to what i had to say and when i left they each shook my hand wished me the best. When i got their letter of their opinion i mighnt of liked their decision, but i still respect that was their opinion and respect their reasons and the process they went thru to make it. Afterwards i showed my own doc the medical panels decision and he said to me you know David to be honest if Id had to go into court and justify what you were seeking id probably have wouldve struggle. that confirmed again to me that though i mightnt have like their decision as it didnt go my way, it was fair decision and the process they went thru to make it was fair.
as a long term person in the workcover system to me the medical panels system appears to me one of the few things that operates with fairness, is consistent and they are considered in their opinions and treats injured workers with respect & dignity regardless of the outcome.
why would anyone want to get rid of the one friggin thing that works properly in the whole system!!!
David, if you read my comment carefully you will see that I write that Medical Panels in Vic tend to provide fair and consitent outcomes…Their medical examinations tend to be more careful, and more professional. Indeed many injured workers report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.
However,the point I am making is that it has lately come to my/our attention, that more and more Victorian injured workers have been disappointed by unfavourable decisions made by a Medical Panel, and that unsympathetic and, yes, biased, Medical Panel doctors appear on the rise.i also write that I/we are wondering if it could it be that our Medical Panels are under-resourced and overworked, given that disputation is on the rise? Or are we really starting to see explicit bias?
I/we’re not saying they are all ‘plotting against injured workers'(as you say) or that they are all biased. I then give an example of a recent Vic legal case whereby a prominent judge is critcising the medical panels, especialy with re to ‘medical history’ and what was said by whom. As the judge states it is not the only case… In Another recent (20140 legal case (and we know the injured worker) – the supreme court found the medical panel acted unreasonably failing to let the injured worker explain inconsistencies re video surveillance footage… and the panel reached its decision in breach of natural justice.. If you were to keep abreast of legal cases, you would also notice the increase in medical panel issues.
As for criticising our website (I am the founder indeed), you are of course free to do so, but I would urge you to do it (constructively if you can) on our site, and not here, as it has nothing to do with this great Tasmanian site.
What you write however is quite troubling, as I can guarantee you that, as the founder of the site, nobody is “plotting or prosecuting us” – on the contrary! We’re receiving more and more support from prominent internationally renowned injured workers advocates (including Erin Brockovich and D Powell (Canada) who is well versed in our Australian workers comp system), prominent lawyers (who give their valuable advice for free) and our site is continuing to gain immense popularity with over 10 thousands unique visits per day.
AS ‘for playing the victim”, please note that I am very seriously injured (>40%WPI) myself and that I too have been in the system as long as you have. Our authors are in fact all deemed seriously injured (30% or more WPI) and we all have vast experience with “the system”. Our goal is not to criticise the system per se (although inevitable), rather to educate and empower injured workers, by exposing ‘the system’, so injured workers can learn their rights and learn how to protect themselves from a far too adversarial system.
I hope this alleviates some of the concerns you have.
WorkCover Victim, I think that the best approach to empowering injured workers is a topic all to itself and I am happy to host that discussion on this blog site, but perhaps not amongst comments about Medical Panels. I have received other comments specifically about the Workcover Victim website that have not been posted. I don’t want to turn constructive debate into a slanging match about who best represents the interests of injured workers and how best to empower them. In relation to the problems flagged about some recent legal decisions relevant to Medical Panels, it is unsurprising to me that there will be legal issues from time to time with the Medical Panel process. By its nature, it is a process more closely aligned with the medical approach to decision making than to a legal process with rules about evidence etc etc. The concept that all Medical Panel examinations be recorded would need to be carefully considered. There might be a significant downside to recording, as it might negatively affect the free flow of information and the decision making process. It might well be reasonable to accept a few problems later challenged by lawyers than to make the Medical Panel process feel like another Court.
To John, No I am not aware of any analysis of opinions of Medical Panels (nor any research about opinions of IME assessors for that matter).
As I have been to a medical panel in Victoria, I can only say, while I was treated with respect, there were some inconsistencies in the report against what was said in the interview process…
They answered the questions posed by my CM but no further, even though I had given them all the information relating to my workcover claim.
They did investigate and rule against a past decision, by an IME and an erroneous report from a physio which had led to a 0 WPI rating. For this I thank them.
I feel they should have reported on the initial accepted conditions, not just what was requested.
The reason the SA Medical Panels failed is because their decisions were not final, in Victoria appeals only occur regarding issues of procedural fairness, natural justice.
With all due respect the Beach comments were nonsense. The Medical Panel is not equivalent to a police interrogation.
The first conveyor was a surgeon, then 2 GPs, a rheumatologist and now John Malios, another GP
All Victorian court decisions have been cast into doubt by a recent High Court Judgement
Michael
Thanks Michael,
I would have thought there was more to the failure of SA Medical Panels than just lack of finality of their decisions. I presume there must have been some dissatisfaction with the outcomes themselves. I am interested in further analysis of that subject as it will be important for any system in future that wants to go down the track of panels.
I agree with your comments about equivalence to a police interrogation.
Because of the quasi-judicial function of Medical Assessment Panels, I find it surprising that there appears to have been no independent assessment of their findings in terms of their logic and scientific content. In the clinical areas of musculoskeletal and pain medicine, so-called experts can differ quite widely in their views, which to me suggests that the opinions and decisions of Medical Assessment Panels are likely to be quite variable and inconsistent. I understand that third-party payers expect definitive answers to the questions they ask of Panels and may not be prepared to accept that they fall within “grey areas” where an honest response might be “we do not know”. Do others think along these lines?
The Victorian Medical Panel is made up of Specialists who are IME’s. I know first hand how biased and manipulative these guys are. When I had evidence against the first IME for colluding with the Insurer (and employer) to provide a pre-determined outcome i.e. to terminate my entitlements, upon being notified of the allegation the IME swiftly resigned and the VWA said they could no longer investigate him. The 2nd IME didn’t give them enough to terminate me, so the Insurer asked for a Supplimentary report (and just for good measure) typed him what they wanted him to say in his report, word for word, so that they could terminate me. The IME typed it, yes word for word, or maybe cut & paste and happily acceepted the cheque and I’m sure some more referrals for being so easy to deal with. Interestingly I made and appoinment with this same IME because he did mention an operation that may have helped me, so I weent back to get more info. When he realized the Insurer didn’t send me he nearly had a heart attack, told the receptionist to “Bulk Bill” the appointment so the Insurer would not be able to find out (obviously this would jeopardize his business with them. I have many more stories, I can also substantiate my statements with evidence.
You can debate the issues involved as much as you want but until you have been inside the system and have a serious, legitimate injury and get treated the way most of us have been, then you really will have no idea what impact it really does have on our health & lives.
You may criticize “aworkcovervictimsdiary” for being too negative and I can see how this site might read in that way to someone who is “outside of the system”. I don’t like to view myself as a victim, it implies powerlessness and giving yourself over to others to determine your future and everything that happens to you. I can say however, that whether these people choose to call themselves “victims”, in the end that is what they become whether they like it or not because they end up in a system that is so biased and adversarial. I can also say that they are NOT ranting nonsense and being paranoid. The system is deliberately and strategically geared towards inflicting emotional trauma onto already very ill injured workers. Quite frankly it’s a numbers game and they can cull numbers by stressing people beyond what they can handle and what is reasonable and forcing them from the system. I also don’t say that lightly as I have have evidence on that as well. All the evidence in the world does not help your situation when the Authority in charge is either enabling or actively encouraging what really should be described as unlawful, reckless and irresponsible actions of the Insurers and some IME’s.
Just skipping back to the IME issue and lets stick with the VWA for the moment. Why won’t they release a list of theses supposedly “independent” medical assessors. Surely that would be prudent in a “transparent system”, their words not mine. How can these IME’s be independent when the Insurer has the power to reward them with very lucrative business opportunities should they provide the Insurer in return with what the Insurer is looking for? It’s a very simple agenda, they give the insurer what they want and continue to get business, they give an honest and independent opinion and then don’t receive any more referrals. I have this with one IME atm. He gave a refreshingly honest Report so now the Insurer are Doctor shopping me to another and telling that IME what they want. If the Insurer is acting responsibly to their duties under the Act and if there are legitimate medical opinions that need to be obtained, then surely a list of IME’s should be made available and then the injured worker could choose an appropriate provider (matched by their Speciality, nearest location to the workers residence and/or availability for assessment). The percentage of IME’s that are over the normal work retirement age is very suspicious. I for one would love to see the statistics on how many of them derive the majority of their income / client base from the WorkCover Scheme. I don’t see the VWA releasing that sort of data in the public arena.
It seems there are many ways that the Schemes could be better managed but to do so would mean that the people in power benefiting most financially would need to approve the changes. Given that they are human, that is very unlikely.
“Power tends to corrupt and absolute power corrupts absolutely”.
“All it takes for evil to prevail is for good men to do nothing”.
I ask you, where have all the good men gone?
Adam, your comments reflect badly upon the medical profession of which I am still a member. The “good” men have probably long since departed the scene upon discovering that the duties of IMEs run counter to those more ethical ones for which they have been trained.
Sadly it appears this blog too is going the way of any other forum that in the past has attempted to have a constructive discussion about workers compensation, its gets hijacked by WorkcoverVictim and her loyal whacko disciples.
Hardly surprising given she posted an instruction on the WorkcoverVictim website for her whacko members to come on here and support her views (this is exactly the groupthink I was talking about).
‘adam’ aka ‘bert’ from WorkcoverVictim…you post the same thing over and over and over again.
Geez you really got your knickers in a knot today still. I stopped counting the number of posts that made up your manic diatribe on the WorkcoverVictims site today alone. Calls for class actions, royal commission, mate you’re doin’ my head in.
Seriously mate I think you need to take up a hobby. What you’re doing is not healthy.