Surveillance – Sharp Focus or Blunt Instrument?

Posted on September 12, 2014 by Tasworkdoc

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In my work as an independent medical assessor, and occasionally as a treater, I am asked to view video surveillance of compensation claimants. This occurred again recently and caused me to reflect on the whole business of covert surveillance.

There was the usual report from another doctor who had viewed the surveillance saying that the worker moved easily and therefore had capacity beyond what they claimed with the almost inevitable conclusion that the worker was fit for unrestricted work.

On careful analysis of the surveillance the worker was, in fact, showing evidence that there was limitation of their activity and, after I met the worker to discuss the surveillance and some apparent inconsistencies, it was clear to me that, apart from a little miscommunication, there was no evidence of fraud or misrepresentation.

I get an uncomfortable feeling when I am asked to look at video surveillance. Should I be peering at injured workers who are oblivious to the fact that they have been watched by a private detective filming their everyday activities? Is it right that their spouses and children get filmed as well? Is it right to film an injured worker dropping off their children at school and in the process other children are filmed ?

By hey! The worker might be committing fraud by claiming that they are worse than they really are, or heaven forbid, there might actually be nothing wrong with them at all! Surveillance must be OK – it can’t hurt anyone and provides an objective means of detecting fraud, doesn’t it? How else can the guardians of our system determine if a claim is without merit?

Surveillance of injured workers seems to be an accepted part of the workers compensation landscape. Even lawyers with a focus on an individual’s rights seem to barely bat an eyelid about surveillance. It just happens and almost routinely at that. Surveillance is viewed and discussed behind closed doors by insurers and their advisers and occasionally sees the light of day in the courtroom.

There is no doubt in my mind that surveillance is widely used as a tool to try to determine an injured worker’s honesty. Many, if not most, of the injured workers I am asked to assess as an independent doctor have been under surveillance at some point in their claim.

I haven’t been able to find any scientific literature about the risks and benefits of surveillance, so I have to rely on my own experience and opinions of others. Perhaps the insurance industry has research evidence about its utility, but even some seasoned claims staff tell me that surveillance rarely provides definite proof of fraud.

I have however seen significant harm caused by surveillance, even the possibility that it might occur can have an effect.

I have cared for injured workers through my practice who have developed significant psychological illnesses once they became aware that they were under surveillance. I have seen the benefits of months of intensive psychology treatment undone by ill-conceived surveillance. More importantly perhaps, many injured workers restrict their activities for fear of being filmed. This can impinge on physical recovery (and Vitamin D levels) when they remain indoors in the safety of their homes and avoid the resumption of activity that is an integral part of their rehabilitation.

Yes, sometimes surveillance does reveal that an injured worker is exaggerating the effects of their injury and very occasionally that there is gross misrepresentation, but the common scenario is that surveillance shows people trying to get on with lives as best they can, despite their injury.

Surveillance can tell you what a claimant is doing for short periods if the identity of the person is clear, but it cannot reliably indicate the presence of pain and does not show the after effects of a particular activity. It cannot tell you how much medication they have taken for pain. It certainly is not an accurate tool to measure capacity for work. Brief periods of surveillance are useless for determining capacity for sustained activity.

A short sequence that shows a claimant lifting a laundry basket or their 3-year-old child does not equate to capacity to work in a laundry or child care centre.  A film does not usually indicate the factors that lead to an activity. Did they pick up their child because the child was hurt?

Film can be subject to manipulation by editing. Many workers have expressed to me concern that the videos of them are not complete and some important sequences have been deleted, but it is impossible to confirm that this has occurred as there are other explanations why film might appear edited. Some workers believe that surveillance is undertaken to intimidate, rather than any other purpose.

When a worker puts in a claim for compensation it is not explained to them that, as a part of the claims management process, they might be under surveillance  with the consequence that their families, friends and work colleagues might be filmed as well. Is the worker aware that when they are booked to see an independent doctor, their claims officer might ask a private detective to film their arrival and departure from the appointment? There are issues of trust here. Once a worker is aware that they are not trusted it can change the dynamic of their interaction with a whole range of claims and rehabilitation processes as well as the mind-set of the claimant. A decision to place a worker under surveillance is clearly not free of risk, or cost for that matter.

In my view surveillance is an expensive and blunt instrument, but does it have a place in our compensation systems?

The answer is probably yes, but only where there is evidence of frank fraud, an understanding of its limitations and controls over its use. Those who make judgements about surveillance need training to understand the limitations and those who do the filming need strictly enforced codes of conduct.

Decisions to put a claimant under surveillance should not be made by a claims officer on the basis of a whim, unsubstantiated gossip or as a ‘fishing expedition’ to look for evidence to terminate a long-term claim. Perhaps an independent member of the judiciary should be involved in the decision to ensure the risks and benefits are properly considered.

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Why Insult & Injury? – The Video

Posted on September 6, 2014 by Tasworkdoc

See the brief video where I explain the background to this blog!

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Injured Worker Support Websites

Posted on August 20, 2014 by Tasworkdoc

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There was an unexpected outcome from my last post about Medical Panels. There were comments about whether a particular injured worker support site really represented injured workers and achieved the goal of empowerment for injured workers.

On the one hand it was argued that such sites provide practical useful information to workers to help them understand and negotiate the system, while on the other the argument has been put forward that such sites do more harm than good. Concerns have been expressed that sites can spread misinformation and conspiracy theories and contribute to ‘victim behaviour’.

An almost universal feature of our compensation systems is ‘loss of control’. Any reasonable action that returns a degree of control to injured workers would be expected to be helpful to deal with an injury and the associated stress.

The focus of the Insult & Injury website is to provide a medical perspective on the effects of our compensation system on recovery from injury. The intended audience includes injured workers, doctors and other participants in the compensation systems, but most important of all those organisations and people who design and control the system.

I believe that change is needed at a system level, hence my focus on topics such as improving IME assessment processes, promotion of Medical Panels, improving impairment assessment processes and encouraging support for research relevant to workers compensation.

Personally I am unsure about the best approach to empowering injured workers. Support websites almost certainly have a role, but I am interested in opinions about how they might work best. Better still research evidence about what works best, if there is any!

I hope this provides a forum for constructive discussion.

COMMENTS PLEASE!!

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Update on Panels Panels Panels Oi! Oi! Oi!

Posted on August 16, 2014 by Tasworkdoc

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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!

 

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My Queensland Experience – Implications for National Impairment Guidelines

Posted on August 7, 2014 by Tasworkdoc

I recently have had the experience of undertaking an impairment assessment for an unfamiliar interstate jurisdiction – WorkCover in Queensland. While I am familiar with the principles of impairment assessment generally and regularly undertake impairment assessment in other jurisdictions, my recent Queensland Experience illustrated the difficulties inherent in having so many different workers compensation jurisdictions each with their own variation on the approach to impairment assessment.

Not only does the approach vary from state to state (and Commonwealth), but there can be varying approaches within each jurisdiction dependent on the date of injury, reflecting legislative changes that have occurred. In the Tasmanian state jurisdiction with which I am most familiar, I have argued that it is best that all assessments be conducted according to the current guidelines, rather than having a system whereby an assessor needs to be able to turn back time and conduct an assessment using an earlier outdated methodology. I have discussed some of these issues in my earlier article – Double Whammy for Insurers from Tasmanian Impairment Guidelines

The insurers and their legal advisers have criticised an approach using only the current version of the guidelines – with some justification. The updated guidelines that now apply  in Tasmania to all spine impairments , irrespective of date of injury, mean they are now assessed more favourably from the perspective of the worker. The insurers argue that this is unfair. They had not had the opportunity to collect premiums in accordance with the liability imposed by applying the new guidelines to injuries that had occurred before the date of effect of the guidelines.

My Queensland Experience high lights the difficulties in retrospectively applying an earlier methodology. The WorkCover Queensland Website www.workcoverqld.com.au has lots of information and guidelines for the recently introduced methodology using AMA5 and their new Guides to the Evaluation of Permanent Impairment (GEPI), but it was difficult to make sense of the older methodology that used AMA4 and a ‘Table of Injuries’. In particular, I couldn’t find a sample report on the website, only a blank report pro forma and some guidelines that were difficult to follow. Even a colleague with knowledge of impairment assessment systems nationally described the earlier Queensland approach as a ‘dogs’ breakfast’.

In future, I would hesitate to conduct another Queensland impairment assessment. This might mean that a Tasmanian worker having returned from Queensland after an injury might need to return to the sunshine state for an assessment rather than it being done locally. This adds costs, delays and inconvenience.

At a local level we might be able to sort out anomalies in our state-based impairment guidelines (in Tasmania this includes impairment ratings for spinal surgery and CRPS), but a National approach is really needed to improve consistency and reduce ‘red-tape’  associated with the important process of assessing residual disability and impairment due to work-related injury.

At a national level the contentious  issue of how to rate impairment due to chronic pain could be tackled. An improved approach to the assessment of spinal impairments could also be developed. It would be too much for each of the current jurisdictions to tackle these issues on their own.

What is really needed is a National Impairment Assessment Guideline. After all, we are one country.  Some political will would be needed, so politicians please put this on the national ‘Reduction of Red-Tape’ Agenda!

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PANELS PANELS PANELS OI! OI! OI! – Part 3 of IME’s – the good, the bad & the ugly

Posted on June 21, 2014 by Tasworkdoc

Aussie Panels Oi Oi Oi Final

(With apologies to Australian Cricket Supporters)

This is part 3 of a trilogy about IME’s. Here I put forward ideas about how the system can be improved. In some jurisdictions some of the improvements are already being put in place.

There are not many publications about IME assessments that a doctor can use to help them with the task of assessing compensation claimants from an independent perspective. Some years ago I became aware of an American publication – ‘Writing and Defending Your IME Report’. I eagerly purchased the book in the hope of discovering important principles of IME assessment. How disappointed I was! The book discusses the best way to express your opinion and techniques to get your views across in a courtroom, but nowhere in the book is there anything about being objective or fair in the opinions you might express! How can one expect fair and reasonable IME assessments when even textbooks don’t detail important underlying principles?

I have recently been involved in discussions with other doctors and insurance company representatives about the problems in the Workers Compensation system in Tasmania. I drew from my experience some examples of the problems faced with decision-making within that system. One example I used is of a person injured in a motor vehicle accident in 2007. I saw this person at the request of their solicitor some years ago. One of the important issues at the time was whether a neck operation was required, but the insurer’s IME assessors didn’t think it was necessary. I reassessed the same person recently. No agreement had been reached about the need for surgery. The case was coming up before a higher court and I had been asked to again provide an opinion. The lesson from this case is that it can take years for our legal system to make a decision about whether a neck operation is required or not – a seemingly simple task frequently and quickly made where compensation is not involved.

To summarise, there are 2 main concerns I have about the processes relied on in our compensation systems to deal with contentious matters.

Firstly, there is considerable doubt  about the independence of IME assessors when they are paid by one side with a financial stake in the outcome, whether that be by the insurer or a lawyer on behalf of the claimant.

Secondly, a medical decision-making system that utilises legal principles of evidence and a ‘judge’ to decide on the merits of two diametrically opposed positions is slow and fraught with risk of a medically incorrect outcome. Decisions about treatment need to be made quickly. Delays result in progression to chronic pain and development of secondary psychological disorders.

In a ‘normal’ medical setting decisions are made by the doctors with the best interests of the their patient in mind. Where there is uncertainty there is a hierarchy of specialists who can provide guidance. Sometimes a difficult case is discussed with a panel of specialists. There are restraints on spending at  a system level. For example very expensive drugs are  funded, or not funded,  by the public purse depending on their perceived cost-effectiveness.

Our compensation systems need to adopt better processes to resolve disagreements about what is reasonable treatment. This could be extended to other ‘medical’ questions, such as diagnosis, work fitness and residual disability and impairment. Causation is a more difficult matter as legal definitions of causation might not equate to medical definitions of aetiology.

Some jurisdictions already have systems of Medical Panels to decide medical questions. This approach is better aligned to normal medical decision-making. This is clearly the way to go, but there are challenges.

In Tasmania, there is provision for Medical Panels in our workers compensation system, but they are rarely used. This is probably because the lawyers in the system have hesitated to rely on a ‘medical’ process. They have more confidence in a familiar legal process of opposing opinions with a respected member of their fraternity making the final decision. While such processes might be fair and just, the process itself and the delays involved introduce a set of additional negative consequences for claimants. Might I say, the processes ‘Add Insult to Injury’!

Further challenges include the selection of panel members and a means to ensure an adequate supply of ‘medical experts’ to sit on panels. My view is that the medical profession itself should decide who are suitably qualified and experienced to be panelists, but who represents the medical profession? Doctors are more likely to want to be involved in a system set up by the medical profession.

Even with an effective Medical Panel system, there will probably be some issues that will be decided on the basis of traditional legal decision-making. IME assessors will remain a part of that process.

To improve the standards of those doctors who undertake IME work there is a need for training and awareness and systems of accreditation. This has already occurred in some jurisdictions. Victoria now has a system of Quality Assurance for IME assessors. Another strategy is that IME assessments be conducted by a single practitioner, where both sides agree on the choice of assessor. This approach also has merit.

In summary, the current problems with IME assessment are best addressed as follows:

1) Reducing the requirement for IME assessment by improving routine communication between treating practitioners and insurers who make funding decisions. Technology has an important role to play. The ACC in New Zealand has ‘on-line’ certification in place already. Perhaps simple queries by the insurer can be answered by the doctor on-line during the consultation, rather than the busy doctor having to make available separate report-writing time.

2) Legislation that allows treatment to proceed by providing funding while any disputes about liability are resolved can also be helpful to reduce the requirement for insurer approval for investigations and treatment.

3) Improvement in the standards of IME assessors with the development of ‘Codes of Practice’ and associated training about the principles of independence and objectivity is critically important. Peer-review systems to ensure quality are an important consideration. IME assessors need to be able to demonstrate clinical competence in the relevant area of medicine. Practitioners who have not actively practiced should probably be excluded after they have ceased active clinical practice for 5 years (or perhaps less).

4) Publicised and accessible complaint processes need to be in place to ensure that unprofessional or biased IME assessors can be brought to account.

5) Use of jointly appointed IME’s has merit i.e. the insurer and employer’s legal representative agree on the choice of IME to provide an opinion.

6) The most important strategy is properly constituted Case Specific Medical Panels that make important decisions about diagnosis, reasonable treatment and impairment and have an important role in determining medical factors in causation. Eligibility to sit on medical panels should be a matter for the medical profession i.e. which practitioners have the relevant expertise.

In summary, it is important to strive for a system that relies much less of IME opinions. IME assessors that provide opinions should be competent practicing doctors  aware of principles of objectivity to avoid bias in their opinions. Medical Panels operating independently of the legal system should make important decisions about disputed diagnoses, what treatment is reasonable and residual impairment utilising standardised impairment guidelines that recognise current clinical practice. Medical Panels can have an important role in providing objective evidence about medical factors in causation of injury or disease.

With these principles in mind, our compensation systems can be fair to all concerned and minimise the collateral damage inflicted on claimants by claims assessment processes.

 

 

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How big is the Elephant in the Research Room?

Posted on May 29, 2014 by Tasworkdoc

 

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A really effective way to annoy a worker on compensation payments (or any worker for that matter) is to not pay them properly. It is even more effective if the worker is already on legislated step-downs in their weekly payments or if their injury has already caused pain, anxiety or stress.

A very effective strategy to change a worker’s focus from recovery to their legal rights is to suggest that they might be dishonest or not entitled to claim compensation. Keep in mind that, contrary to populist belief, most people hesitate to claim compensation because of the associated stigma, particularly if they previously have had a bad experience.

My statements above are based on my experience talking to 100’s (probably 1000’s) of workers over the last 30 years of clinical practice, but I can’t back it up with properly conducted research. Discussions with clinicians who treat patients in compensation systems support my observations.

In 2001 The Australasian Faculty of Occupational Medicine/The Royal Australasian College of Physicians, Health Policy Unit published a report  – ‘Compensable Injuries and Health Outcomes’.

In the Executive Summary the following appears:

“Although most people who have compensable injuries recover well, a greater percentage of these people have poorer health outcomes than do those with similar but non-compensable injuries. There is sufficient good quality evidence to show this to be true, and significant agreement among practitioners in all relevant fields (medical, legal, insurance, government oversight bodies) to support the evidence and to suggest that a complex interaction of factors is responsible for this. However, research into causes of poor health outcomes for these people is fragmentary and inconclusive. Not enough is known of the effects of different types of compensation schemes or different methods of management of cases (by all practitioners involved) to allow the development of a ‘best practice’ model.”

In the report recommendations the following appears:

“Develop a research strategy with the aims of:

◆ identifying key features of compensation design which are likely to impact on health outcomes

◆ determining impacts on health outcomes

◆ developing options for scheme design that optimise health outcomes and are cost-effective.”

WorkCover in Tasmania apparently don’t have a budget for supporting research at present, although in the past I understand they have funded some University of Tasmania research.

The ISCRR in Victoria, jointly funded by TAC/WorkSafe Victoria. apparently have an annual budget of $2-3M for research relevant to OHS and RTW. ISCRR has funded the HECS Study, looking at the health effects of compensation. Here is the link to a summary:

http://www.iscrr.com.au/reports-pubs/research-reports/hecsonepagesummarysept2013.pdf

The study looks at the relationship between stressful claims experiences in compensation systems and, in particular, the role of claimant vulnerability. This is a study of a cohort of hospitalised injury patients, so the findings might not be applicable to workers with a less serious musculoskeletal injury that make up the majority of workers compensation claimants.

The study confirms that a significant number of claimants (53%) found their claims experience to be stressful, including significant numbers finding the number of medical assessments stressful (27%). The study found that the risk of poor prognosis was increased in those with claims-related stress. PTSD suffered were particularly vulnerable. It is encouraging that the authors recommended the need for redesign of claims procedures and processes.

The study is observational rather than an intervention study with a control group. A more comprehensive study with a different design might provide a lot more useful information, but might be more expensive and require the co-operation of insurers or claims agents.

Collie et al make editorial comment on the health effects of compensation:

Evaluation of a compensation claims management intervention for improving recovery from traumatic injury, Injury, vol. 43, no. 9, pp. 1335-6.

The authors state:

“Multiple studies have demonstrated that interaction with the compensation system via the injury claims management process has a substantial impact on the health and well-being of injured persons, particularly in the area of mental health. The anti-therapeutic effects of injury claims management processes has been demonstrated in multiple jurisdictions.

The potential positive impact of system-level legislative change in injury compensation systems on the health and wellbeing of injured persons has been demonstrated. However, the effect of changes to injury claims management processes are rarely studied”

I am unaware about how much is spent on such research in other Australian jurisdictions, but it seems that investment in research into alternative models of claims management is lacking, especially when compared to the amount of money spent in the various compensation systems around Australia (about $20M annually in Tasmania alone)

A useful starting point would be a prospective study of cohorts of injured workers to compare health outcomes with different approaches to claims management.  A cohort subject to current claims management practice could be compared to a cohort where  medical approaches to decision-making for treatment and management are utilised. This would help tease out the impact of the traditional confrontational liability-driven legal model of claims management on health outcomes.

If it was possible to quantify any detrimental effects of claims management practices such as IME assessments, claim disputes and covert surveillance on health outcomes (or duration of incapacity) an objective debate about the best approach to design of our compensation system could ensue. Such information would mean that claims management practice costs could be understood by the financial organisations that administer claims i.e. the insurers and claims agents.

My conclusion:

THERE IS A LARGE, BUT BARELY VISIBLE, ELEPHANT IN THE WORKERS COMPENSATION RESEARCH ROOM – THE IMPACT OF CLAIMS MANAGEMENT PRACTICES ON HEALTH AND FINANCIAL OUTCOMES

Quote for the day (doctors like the example of smoking) :

‘JUST BECAUSE IT IS LEGAL DOESN’T MAKE IT A GOOD IDEA” – 

 

 

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IME’s – the good, the bad & the ugly – Part 2 – Current Issues

Posted on May 19, 2014 by Tasworkdoc

This is Part 2 of a 3 part series of blogs about Independent Medical Examinations (IME’s). This series is written from my perspective as a doctor treating patients covered by workers compensation or motor accident insurance. While all compensation systems are not the same, the issues described seem to occur in all systems to some extent. What is of particular concern to me is that the problems described are generally becoming more wide-spread and some systems that were in the past reasonably supportive, are turning to a more aggressive and confrontational model. Use of IME assessments seems to be a feature of a more aggressive liability-denying approach. This adds an additional negative dimension to those that suffer injuries in the workplace or on our roads

I hear the stories of many people who attend IME assessments. Most people go along expecting a professional, caring approach by the independent doctor (and perhaps even helpful treatment suggestions), but are disappointed by a relatively brief and sometimes frankly cursory interview about  a complex many-faceted injury. Some assessors rely on the history taken by another assessor at an earlier assessment. Worse still some assessments are confrontational, described  as an ‘interrogation’. Sometimes the person being assessed is only allowed to answer ‘yes’ or ‘no’, when a more detailed answer is necessary for the examiner to understand the situation properly. Some IME assessors use techniques that interfere with proper history taking e.g. some assessors dictate their report during the assessment. While this might be reasonable to record some aspects of the assessment, such as the examination findings, this can be intrusive to a proper interview to obtain the patient’s history especially where there are complex matters to discuss or the person being assessed is nervous or has cognitive problems that affect their ability to remember and logically relate their story.

The prejudices of the IME assessor are sometimes evident. They may appear to assume that the person being assessed is not being truthful or is embellishing their story without any evidence to support that presumption.

True, some IME doctors are respectful and thorough and try to gain a full appreciation of how the injury occurred, what treatment has been provided and the effects of that treatment as well as trying to understand the impact of the injury on all facets of the person’s life. Unfortunately that approach to assessment is becoming less common and seems to be the exception now, rather than the rule.

When it comes to physical examination, again some IME assessors might only conduct a cursory examination, asking the person being assessed only to move their limbs around when a proper assessment of a musculoskeletal injury should involve at least a ‘look, move and feel’ approach taught to doctors. Additional tests of nerve function are often necessary. Assessors should properly measure joint range of motion when impairment assessment requires measurement. Some assessors are reported as not using goniometers, the accepted instrument for that purpose. Worse still some claim to use them in assessments, and record that they have in their report, yet the person being examined is adamant that no such instrument was used. Some IME examiners are reported as having scant regard for normal examination protocols to respect the privacy and dignity of the person being examined.

Similarly with review of investigations, such as scans, IME assessors can sometimes  ignore or dismiss such results when the person being assessed has dutifully brought them to the assessment.

There are concerns that some IME assessors impinge on the treating doctor’s role by taking on treatment. Sometimes this boundary is poorly understood by the person being assessed. They believe they are obliged to accept a treatment recommendation or even to actual treatment ordered by the IME assessor. While in rare cases, an IME might ethically take on treatment, this would require a very good reason, such as an absence of available suitable specialists in the same field. This could only be done after agreement with all parties, particularly the patient them self that this is in the best interests of medical treatment.

I have recently had the opportunity to discuss these issues with medical colleagues. Many express concerns about the validity of IME opinions. These concerns were summarised in a discussion paper prepared on behalf of AMA Tasmania as follows:

‘Independent medical assessors often provide opinions outside their area of expertise, are not up to date in their knowledge of current practice or consider only selected information provided by the insurer.

Independent medico-legal reports are often unnecessarily requested during the course of a claim. This leads to confrontation changing the mind-set of the patient to proving their case with detrimental effects on recovery.’

Under workers compensation legislation in Tasmania, the worker’s doctor who writes the certificates (known as the Primary Treating Medical Practitioner or PTMP) is obliged to receive a copy of any IME reports about their patient. I see many such reports. The concerns expressed by the AMA above are borne out in many reports. It is evident that the IME assessor might not have considered all the available medical information. I have seen situations where IME assessors have ignored results of important investigations and have repeated their opinions even when their oversight has been communicated to them.

An important principle is that an IME assessor should take fully into account the treating practitioner’s opinion and the results of available investigations before expressing an opinion, however often it is difficult to get that information to the IME assessor, especially when the information provided to them is controlled by the insurer. At times an IME assessor will express a definite opinion when they have not considered all the available information. In circumstances where all available information is not available, the IME assessor should state that fact and defer expressing an opinion until that information is obtained.

Patients often point out factual errors in the history recorded once they see the IME report about them. Sometimes the error will have little bearing on the accuracy of the final opinion but sometimes critical information is left out or is wrong. Either way such inaccuracies or omissions detract from confidence in the ability of the doctor doing the assessment.

Some IME reports include detailed descriptions of the worker being assessed. While it might be reasonable for the assessor to confirm the identity of the person, there is no  justification for the doctor to record detailed descriptions of tattoos, body piercings, hair styles or other distinctive features that could only be relevant to identification for covert surveillance activity. There is no place for an IME assessor to be party to covert surveillance of an injured person. I have heard claims that doctors have been complicit in surveillance activities, but never seen any convincing evidence that this has actually occurred. It is relatively common though for the insurer, having organised the IME assessment, to request surveillance of the person during their travel to and from the IME appointment. There was a case where the person being assessed told me that a team of two surveillance operatives followed the claimant and their spouse interstate to an IME assessment, including following them in public places and in a restaurant while they ate their meals.

While the approach taken by an IME assessor can affect the validity of the assessment, the real issue is whether IME assessment is necessary at all, at least in its current form. The IME role, as currently promoted by an ever-increasing number of insurers is based on the need to find evidence to deny liability, reject approval for treatment recommended by treating doctors or identify extraneous issues that might help the insurer deny liability.

The problem, even with a professional IME assessment is that it sets the scene for confrontation and disagreement, rather than co-operative problem-solving. If the IME assessor raises issues of causation, the response from the person being assessed is to assume an attack on their honesty and integrity. This type of attack is vigorously defended by most ‘normal’  people and leads to a legal focus which doesn’t assist recovery. An unprofessional or invalid assessment is far worse and might deny or significantly delay reasonable and necessary treatment with the result that psychological consequences escalate, chronic pain becomes entrenched and the injury might never resolve.

In the 3rd and final blog about IME assessments I will discuss what better approaches there might be. How can we ensure that only competent impartial doctors conduct assessments that are truly necessary. A WorkCover Victim’s Diary promotes ‘Purging Rogue IME’s’ from the system. This might be an appropriate objective, but how is that to be achieved? Who judges who are ‘rogues’  and who aren’t?  How can  insurers, or solicitors for injured workers for that matter, be prevented from selecting IME assessors who will provide opinions to suit their purposes?

See part 3 for some answers!

 

 

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Reflections on Medical Decision-Making

Posted on May 16, 2014 by Tasworkdoc

I’m working on Part 2 of my blog series about IME Assessments, but have been ‘distracted’ over the last week or two by my involvement in an AMA Tasmania Committee considering issues relating to Tasmania’s Workers’ Compensation and Motor Accident Insurance Schemes.

I had the experience of  a meeting with the Tasmanian Government Minister responsible for WorkCover earlier this week. The committee members were explaining to the Minister the problems with the system from the perspective of doctors. I was providing some examples of situations in my own practice to illustrate the issues. I told the Minister about a case where the driver of a vehicle suffered neck injuries in a motor vehicle crash about 7 or 8 years ago. I had first seen this person some years ago for a medico-legal review. There was a disagreement then about whether there was a need for neck surgery. I had seen the same person again about a week earlier to provide an updated medico-legal opinion. His case was to be heard in the Supreme Court in a few months. It didn’t strike me how ridiculous the decision-making process was until I had to explain it to a non-medical person in that meeting.

It has taken 7 or 8 years for the legal system to determine whether a spinal operation is justified, presuming that a decision is forthcoming from the Court.

The legal decision-making process involves seeking opposing opinions. A learned non-medical person, the judge, makes a decision about which side is correct by weighing up the credibility of the evidence. Meanwhile the person with the injury waits in pain, suffers terrible psychological consequences and cannot move on with their life – not to mention the costs of lawyers and use of courts. This is what happens all too often in the workers compensation and motor accident compensation systems.

What normally happens in a health care setting? If a general practitioner doesn’t know what to do a referral is made to a suitable specialist. If the specialist doesn’t know what to do they might seek an opinion from another specialist they respect. If all else fails they would take the case to a panel of their peers or a multidisciplinary group for a ‘case conference’. While doctors can disagree, most of the time this process reaches a consensus of what to do in the patient’s best interests. The process might cost a few hours of doctor’s time and perhaps a few months, at worst, of waiting for the right specialist to be available. It certainly doesn’t take 7 or 8 years or cost anywhere near that of the legal process to reach a decision. The legal approach imposes a penalty on the person in terms of delay with continued pain and suffering. In many cases there is the additional cost of the development of depression and loss of personal relationships. This is in addition to the monetary costs of the legal system.

Doctors should make medical decisions. Legal processes should sort out disputes between parties or decide guilt about criminal activity. The legal system should rarely have to make decisions on medical matters and only where medical decision-making fails.

In the context of workers compensation or motor accident injuries, the best option is the use information from the treating doctors who know their patient the best. Where this is insufficient impartial medical panels of recognised practicing doctors in the relevant specialist field(s) of medicine should make decisions about diagnosis, reasonable treatment, prognosis, fitness for work, causation and impairment. The only issues that arise with this approach are how the panels are selected to ensure experienced and qualified doctors make the decisions and whether there are enough such suitable doctors to service the needs of the system.

The NSW Workers Compensation System is under review at present. The Tasmanian Workers Compensation System is overdue for review. Food for thought?

 

 

 

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IME’s – the good, the bad and the ugly – Part 1- What is an IME?

Posted on May 2, 2014 by Tasworkdoc

I know this stuff about definitions and standards is boring, but I need to set this out so you can make sense of what I plan to say about IME’s in the blogs to follow. So please bear with me. Parts 2 & 3 of this blog series will be much more interesting, I promise.

IME is an acronym for Independent Medical Examination (or Examiner)

According to WorkCover NSW:

‘Independent medical examiners are registered medical practitioners who provide impartial medical assessments’

According to WorkSafe Victoria the role:

‘….is to review your medical condition and/or treatment and provide WorkSafe Agents and self-insurers with an independent medical opinion about your injury or illness. They do not provide you with treatment’

According to WorkSafe Victoria IME assessments can include assessments by physiotherapists, psychologists, osteopaths, chiropractors or dentists as well as assessments by medical practitioners.

The operative word is ‘independent’, i.e. an opinion is obtained that is independent or impartial, but from whose perspective is not made explicit. Is the term independence meant to reflect independence from the bias or advocacy that might be inherent in the relationship between a doctor and their patient or does independence refer to independence from the party requesting (and paying for) the examination? This is usually not spelled out, but the former meaning  is suggested by statement from WorkCover authorities that Independent Medical Examiners do not provide treatment i.e. they do not form a patient/doctor relationship.

While the government workers compensation definitions above suggest that IME assessments are those obtained by an insurer or WorkSafe agent, a worker or their legal representative or any interested party including an employer can obtain an IME assessment.

A related term is medico-legal assessment, but such a term without any reference to independence, can encompass any type of medical assessment whether conducted by an independent practitioner or a medico-legal report obtained from a treating doctor.

IME assessors are obliged to be courteous and treat the person being assessed in accordance with accepted ethical principles, but there is no ‘duty of care’ to the person being assessed. An opinion can be expressed about diagnosis and treatment needs, but usually there is no legal recourse available if the opinion is incorrect. That responsibility falls to the treating doctor.

At all times, practitioners should treat the examinee with dignity and respect. In order to avoid appearing insensitive, rude, or abrupt in their manner or rough in their examination, practitioners are advised to give particular attention to identifying the examinee’s concerns, and to adequately explain the reasons for the examination. Adequate time should be allowed for the consultation to enable a complete assessment to be carried out.

The NSW Medical Board provides the following guidelines (1996):

http://www.mcnsw.org.au/page/old-policies/medico-legal-guidelines/

THE CONSULTATION

1. At all times, the practitioner should communicate with the examinee in language that they can understand.

2. The examinee has the option of having an accompanying person present during the history and/or the examination. This should be explained to the examinee when the interview is being scheduled. The role of the accompanying person is to support the examinee, but not to answer questions or contribute to the assessment. However, should the examinee have an intellectual or speech difficulty, it is appropriate for the accompanying person to assist in the communication between practitioner and examinee.

3. A professional interpreter should be used where the examinee has a difficulty with spoken English. Interpretation should not be provided by a support person or member of the examinee’s family.

4. The practitioner should not make any unnecessary personal remarks, especially when the consultation involves an intimate examination.

5. The practitioner should be aware of differing cultural sensitivities, especially when conducting an intimate examination.

6. Some practitioners choose to video or audio record the examination. The reason for this should be clearly explained to the examinee and consent should be obtained in advance.

7. The practitioner should not offer any opinion to the examinee on their claim or medico-legal circumstances.

8. The practitioner should not offer any opinion on the examinee’s medical or surgical management by other practitioners.

9. In the majority of cases it is appropriate to advise the examinee of an incidental clinical finding which has been identified by the examining practitioner. There may be some situations where it is preferable to notify the examinee’s treating practitioner.

10. It is not appropriate for the practitioner to undertake any form of treatment in relation to the examinee.

THE INTRODUCTION

1. The practitioner should properly introduce himself or herself and explain his or her specialty field of medicine in language which the examinee can understand.

2. The practitioner should explain the purpose and nature of the consultation and examination and that it is not the practitioner’s role to treat the examinee.

3. The practitioner should explain that his or her role is that of an independent reviewer who is providing an impartial opinion for use in a court or before another decision making body and that there are limitations on the confidentiality of the assessment. The practitioner should be aware that the patient may believe that they are not independent, but are working for the third party.

THE INTERVIEW

1. The practitioner should limit their questions to matters that are relevant to the purpose of the assessment, prefacing personal questions with an explanation as to why they are necessary.

2. The examinee should be given an opportunity to provide information that they believe may be relevant to the assessment.

THE PHYSICAL EXAMINATION

1. It is essential that prior to commencing an examination, the practitioner explains which part of the body is to be examined, why it is to be examined, and what the examination entails, including the extent to which undressing is required. The position of the practitioner during the examination should also be explained, particularly when the practitioner will be standing behind the examinee.

2. The examinee’s modesty should be preserved by;

  • the provision of a screen behind which the examinee can undress and dress,
  • the practitioner excusing himself or herself from the consulting room whilst the examinee is undressing,
  • the provision of a gown or sheet

 3. The practitioner should examine the examinee in privacy, unless the examinee has brought a support person to be with them at that time, although the practitioner may choose to have a chaperone present during the examination.

4. Examination should be limited to the area relevant to the examinee’s problem. It is inappropriate for a practitioner to examine any part of the body without the examinee’s consent. This may limit the scope of the practitioner’s examination and subsequent report.

5. If an intimate examination is warranted, the reasons and nature of the examination must be carefully explained to the examinee, and the examinee’s permission obtained. This should be noted in the report.

THE REPORT

1. The practitioner should ensure that their report contains both the examinee’s history and examination findings and that it notes all diagnostic possibilities. Any limitations to a full assessment should be noted.

2. The report should be impartial and unbiased, and reflect the practitioner’s consideration of the available opinions of other practitioners and health professionals who have assessed, treated or provided reports on the examinee in the past.

3. The report should be completed within the timeframe requested by the third party unless there are foreseeable delays or the deadline is unreasonable, in which case practitioner should negotiate a new timeframe.

4. The report should set out the material relied upon and any assumptions made.

5. The report should be comprehensible, easy to read and explain medical terminology.

6. The practitioner should be aware of the risks inherent in utilising his or her previous reports as the basis of a subsequent report without further review of the examinee.

I hope this information helps when discussing the issues that arise in the real world of IME assessment – the subject of Part 2, coming soon.

 

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