More discrimination against claimants with psychological injuries

May 6, 2019


The Canberra Times (5 April 2019) reported that Canberrans injured in a motor vehicle accident will not be able to claim any insurance for anxiety or depression caused by the crash, under proposed changes to the compulsory insurance scheme.

The Barr government Motor Accident Injury Bill passed in principle on Thursday, with the details to be debated when the Assembly resumes sitting next month.

The ACT government is ditching its common-law compulsory third party insurance scheme in favour of a hybrid, no-fault model. But there are significant concerns about some of the exclusions proposed. Photo: Rohan Thomson

But the ACT Law Society and ACT Bar Association have written to all parliamentarians highlighting fundamental problems with the proposed scheme.

Claimants will have choose between getting compensation for pyschological or physical injuries, meaning they cannot combine the physical and psychological injuries they suffer from the accident.

Their insurer only has to pay for one whole person impairment assessment as well, so if the injured person wants to be assessed for both physical and psychological injuries, they will have to foot the bill.

The definition of psychological injury also excludes psychiatric disorders such as depression and anxiety, meaning people can only get compensation for conditions like post-traumatic stress disorder or “mental shocks”.

In a speech that drew heavily from the Law Society and Bar Association letter, Canberra Liberals leader Alistair Coe described the exclusions as “appalling”.

“I cannot overstate the effect these changes would have,” Mr Coe said.

“The government has not addressed the significant issues raised by stakeholders and the Assembly inquiry. The Canberra Liberals believe Canberrans should continue to have access to a comprehensive CTP scheme that supports the rights of motor vehicle accident victims.”

The Law Society and Bar Association also said provisions that would allow children still getting treatment for their injuries four and a half years after their accident to pursue more benefits were easily circumvented.

“There is nothing to stop an insurer ceasing treatment and care after four years and five months and effectively avoiding the automatic consequences,” they said.

However Chief Minister Andrew Barr said insurers could lose their licence if they did not follow the rules set out in the scheme which state they must provide people with reasonable access to treatment and care.

“Now of course there is no such thing as a perfect accident insurance scheme and as we’ve said from the start of this reform project, we’re aiming to deliver a scheme that best reflects the prioirties and the values of this community,” Mr Barr said.

“We have been upfront in acknowledging there will always be trade-offs and competing views when emarking on an overhaul this significant.”

Mr Barr said of the 1500 people injured a year on Canberra’s roads, only about 900 could access the existing, fault-based system.

“The changes we are making would mean around 600 more Canberrans would be covered,” Mr Barr said.

However Mr Coe said this was only achieved by slashing the rights of not-at-fault drivers.

“Quality of life payments would be cut by 80 per cent. There’d be a 31 per cent reduction in loss of earning compensation, a 26 per cent decrease in care costs and reimbursement of private medical costs and public hosptial costs would drop 17 per cent and 6 per cent respectively,” Mr Coe said.

Expert witness issues – from a legal perspective

April 22, 2019

A web-site called ExpertsDirect an agency for expert witnesses of all types  has a good deal of information on its website relevant to expert witnesses. I have included in the Publications section 2 articles.  One is on Expert Witness bias and the other on lawyers editing Expert Witness reports.

The website is

Psychosis and injury-a difficult conundrum

February 15, 2019

The issue of the relationship between psychosis and injury has always been difficult for psychiatrists to resolve. In general, my own view is that if there is a very close temporal relationship between the injury and the psychosis there could well be a relationship. Complications include premorbid symptoms, cannabis use after the injury and a previous history of psychosis. The matter is a little clearer with regard to traumatic brain injury.

The research literature in relation to psychosis following traumatic brain injury reveals that there is a causal link between the two. Some of the significant findings are:

  • Psychosis developing following traumatic brain injury is three times more prevalent than psychosis developing within the general population.(Batty, R.)
  • There is generally a latency period to the onset of psychosis, ranging from within the first year to even ten years post-head injury. ( Fujii, D.)
  • Onset of psychosis is generally been in the age range of 20 to 30 years, but reports have also been noted outside this range, including in the teen years. ( Fujii, D.)
  • There is an increased risk of developing schizophrenia following traumatic brain injury if there is a genetic predisposition to psychosis. (Molloy, C.)
  • Studies are reports of the potential for psychosis increases with the severity of the traumatic brain injury. ( Fujii, D.)
  • There is a greater incidence of psychosis with frontal and temporal lobe damage. ( Fujii, D.)


Batty, R., et al. (2013). Psychosis Following Traumatic Brain Injury. Brain Impairment. 14, 21-41

Fujii, D and Fujii, D. (2012). Psychotic Disorder due to Traumatic Brain Injury: Analysis of Case Studies in the Literature. The Journal of Neuropsychiatry and Clinical Neurosciences.24, 278-289.

Molloy, C, Conroy, R, Cotter, D, and Cannon, M

Is Traumatic Brain Injury A Risk Factor for Schizophrenia? A Meta-Analysis of Case-Controlled Population-Based Studies: Schizophr Bull. 2011 Nov; 37(6): 1104–1110.


Do pre-existing health problems effect recovery from accidents? Have a guess at the answer.

December 18, 2018

The TAC has provided us with the results of a new study.

Before I tell you about the study I want you to guess the answer to this question.

Do a person’s previous health issues (especially involving mental illness or drug or alcohol use) reduce their chances of a good recovery from an accident?  If you answered yes you are on the money.  Here is another blinding glimpse of the obvious.

This new study has shown how pre-accident health can impact a person’s recovery from a transport accident. By linking pre- and post-accident data, researchers at the Monash University Accident Research Centre have revealed fascinating insights into the factors that contribute to a person’s recovery.

Led by Dr Janneke Berecki-Gisolf and Dr Trevor Allen, the project looked at TAC clients’ physical and mental health service use and health service needs before and after their transport accident.

“A better understanding of what’s going on with someone’s health before the crash [will] help to understand why some people recover more quickly than others,” said Dr Berecki-Gisolf. “So to find out about someone’s health before the crash, rather than ask them, we did a data linkage study which actually shows patterns of health before and how that relates to recovery.”

In one section of the project, the researchers looked at hospital admissions data to discover how someone’s pre-accident health might affect recovery outcomes. This showed that pre-existing chronic pain was common and associated with a range of adverse post-accident outcomes. Those TAC clients who then had a delayed recovery experienced a subsequent onset of chronic conditions such as hypertension and depression.

The researchers also analysed Victorian records of mental health service and alcohol and drug treatment. They looked at the overall use of these services before and after the transport injury, as well as associations between mental health and drug and alcohol related issues and claim outcomes. This showed that pre-accident use of these services was significantly associated with more complex claims and delayed return to work.

Sponsored by the TAC through the Institute for Safety, Compensation and Recovery Research, the project will help the TAC more effectively identify clients who may be at risk and provide additional services to achieve better outcomes.

A Farce-The Faculty of Forensic Psychiatry

October 24, 2018


The faculty of forensic psychiatry is both a misnomer and a marriage of convenience. It is time to call a spade a spade and for a divorce to take place (see my detailed comments)


The faculty of forensic psychiatry is an attempt to combine two quite disparate groups, psychiatrist who work with offenders in the criminal justice system and psychiatrist who do civil assessments. Their only point of contact if that they provide reports to courts and other Tribunals.

I have worked in both areas, in the criminal justice system and as a psychiatrist doing civil assessments. I was the only psychiatrist at the Fairlea women’s prison in Melbourne for five years and have been a member of the Victorian Forensic Leave Panel for 20 years. I have also assessed many prisoners.


I have also done more than 20,000 civil assessments and I have been a co-author of the psychiatric assessment guide used in Victoria and South Australia.


I believe that this gives me some experience and insight into the issues that have arisen with the development of the Faculty. There is now no doubt in my mind that this marriage of these unlikely partners has proven to be a failure. It is clear that the committee of the Faculty of Forensic Psychiatry has little interest in those who do civil assessment. This is manifested by the training programs, the content of conferences and by the College website description of the faculty highlighting its fundamental purpose.

Forensic psychiatry is a psychiatric subspecialty relating to the law and the assessment of mental health in the criminal justice system

My attempts to remedy these issues have proven to be a failure. Psychiatrist who do civil assessments have no opportunity for any systematic training. No academic department has focused on providing civil assessment training, the faculty has provided a grab bag of criteria that may lead to membership of the Faculty. It continues to be a struggle for civil assessment psychiatrist to gain a foothold in conferences. Despite this situation there are a significant number who do civil assessment and have a desperate need for some systematic training and an opportunity to meet in a collegiate fashion and write about and discuss issues relevant to this area.

I believe the time has come for the inevitable divorce to take place. let the Faculty of Forensic Psychiatry go it own way and fulfil its self defined core task, assessment of mental health in the criminal justice system

Let those of us who are involved in civil assessments establish ourselves as a legitimate subspecialty. We should form a special interest group, the college only recognises specialist interest groups that exist in each state.. We will need some publicity to gain members. Such a group should include those who do civil assessments together with those who work in the area of occupational psychiatry as these two significantly overlap. By freeing ourselves of the burden of the Faculty of Forensic Psychiatry we will have the opportunity to run our own conferences, to obtain college funding, to develop our own training programs and, it may be that some academic department become interested in providing appropriate training courses when they realise that these are likely to generate significant fees.


What do we call people who’ve had a breakdown?

October 19, 2018

For many years I have been puzzled by the difficulty classified this group of people. With a co-author I wrote a book called “Falling Apart-living with stress breakdown” in 1989. I wrote this because of a sense of frustration.  The term ‘breakdown’ did not appear in the professional literature however many people told me that they had had a breakdown and it seemed to have some general meaning. Since then I have continued to be frustrated by the failure of any about diagnostic systems to come up with a diagnosis that encompasses this group. The term ;breakdown’ continues to elude any academic discussion. At the recent Faculty of Forensic Psychiatry conference in Sydney in September 2018 I presented a paper about this called “What do we call people who have had breakdowns? The diagnostic dilemma of long-term psychiatric disability‘. Click on the link to read the paper.

Expert Witnesses, some changes to immunity from negligence suits

September 16, 2018

In the context of revising my book,’The DIY’ Guide to Civil Forensic Psychiatry’ I came across a paper by Tina Cockburn And Bill Madden entitled

Expert Witness Immunity In Australia after Attwells V Jackson Lalic Lawyers: A Smaller and Less Predictable Shield?

This paper gives a comprehensive overview of the current situation regarding expert witnesses and liability in Australia.  By contrast with the UK, New Zealand and Canada where expert witnesses are not immune for negligence suits, in Australia we are still immune from negligence suit in relation to court work, and work done out of court which is intimately connected with the work in court. The latter is of particular significance in medical negligence litigation given that such claims most often resolve without a court hearing. However the the High Court of Australia in Attwells v Jackson Lalic Lawyers Pty Ltd upheld the advocates’ immunity from suit in negligence. Crucially however, the majority took a narrower approach as to the scope of the immunity by holding that it does not usually extend to negligent advice which leads to the settlement of a case by agreement between the parties. It is worth reading the article.

During the recent Forensic faculty Conference there was a paper given about the situation in the UK where it appears some expert witnesses have suffered draconian consequences! Let us hope the situation here remains unchanged.


South Australia Review of the RTW Scheme June 2018 – some comments

August 13, 2018

This review by Mr Mansfield is explicitly not to comment on government policy so his statement that ‘There would appear to be no rational reason for distinguishing psychiatric injuries from other types of injuries in terms of compensability or causation under the RTW Act.204 This is a policy position that merits review once the RTW Scheme has matured.” Mr Mansfield also commented on the government’s introduction  in awards for government employees that boost their benefits in certain situations, eg danger, He wrote that ‘the ‘modification’ of the RTW Act by those instruments, therefore, may in the future make the management of claims under the RTW Act in the case of Public Sector employees more difficult.”

Other issues regarding the Act were raised in submission

  • There is no combining of psychiatric and physical injury.
  • Work has to be the contributing cause rather than a contributing cause so any pre-existing psychiatric condition may make a claim void.
  • As compared with physical injury, there is no lump sum payment for psychiatric injury even if the PIA meets the 30% threshold for serious injury.
  • SA amendment July 2015 allows workers to choose their preferred assessor regarding Permanent Impairment Assessment (PIA) leading to only 6 assessors doing the bulk of the work.

The discrimination against workers with psychological injuries is blatant.  it was commented on in submissions from the SA branch of the RANZCP and AMA SA.

Pre-existing psychiatric impairment- problems with assessment

July 26, 2018

The issue of pre-existing psychiatric impairment is always difficult for examiners. The usual situation is that a person who has had problems with anxiety or depression and has had or has continued to have a course of psychiatric or psychological treatment or counselling.

In my view there are a number of matters that need to be considered including the following has there been a diagnosable psychiatric disorder?

Has the diagnosable psychiatric disorder required treatment?

Has the diagnosed psychiatric disorder lead to any area of impairment? The examiner has to look to see has there been any problems with regard to employment, relationships, recreational activity, drug or alcohol abuse or other significant behavioural issues such as gambling, aggression, withdrawal and unexplained physical illness.

It is not sufficient for the examiner to say that on the basis of how this person was after the accident it is likely that they had a pre-existing impairment. The examiner has to demonstrate that prior to the accident the pre-existing impairment was manifested by a reduction in level of function or had been diagnosed by a competent clinician.

The task of the examiner is to determine all these factors in the period prior to the accident or incident that led to the claim.

The examiner is then required to determine whether there has been any change with regard to this pre-existing psychiatric disorder. Is factors indicating any change would be a deterioration in function such as ability to work, relationship difficulties, the development of drug or alcohol-related problems that seems to be arising from this pre-existing condition and any changes in treatment for the pre-existing condition such as an increase in medication, an altered frequency of treatment, hospitalisation and so forth.

The examiner can only determine these matters at the time of the examination. It should be a critical part of the examination for the examiner to closely question the claimant’s level of function in the period prior to the incident or accident.

When examining the claimant the stamina has to separate out that impairment arising from the work or transport accident injury as opposed to that impairment arising from the pre-existing condition or an unrelated subsequent condition. This relies on data such as the matters described above. The examiner should be able to provide sufficient data to make a convincing case to a layperson for the presence absence of any pre-existing psychiatric disorder bearing in mind that the presence of a disorder does not necessarily mean any level of impairment. The examiner has to bear in mind that there is a difference between having a psychiatric diagnosis and having a level of impairment.

For example a person who has had a significant depressive disorder but has been appropriately treated and has been on maintenance medication for some years with no reduction in their quality of life including their work capacity, their relationships and their recreational enjoyment cannot be regarded as having any level of impairment. It may be that if that person stopped taking medication their condition would deteriorate and what they would then have some level of impairment but this is a matter of conjecture. The critical issue is that even if they are taking medication is there any pre-existing level of impairment?


In terms of assessing the level of impairment arising from the pre-existing condition at the time of the examination the examiner should look at those symptoms due to the pre-existing impairment and attempt to relate them to the descriptors and the GEPIC and on that basis form an opinion as to what class and to what level in that class this pre-existing impairment now rates.

The examiner is then required to subtract that from the whole person impairment (bearing in mind that the whole person impairment relates to pure mental harm as consequential mental harm will have been removed.

Twisting the tail of the tiger

May 31, 2018

From me to WorkSafe

Thursday 24 May 9.30am

Thank you for this interesting document (see previous post).

To  avoid misgendering, the use of gender-neutral pronouns such as they, them or their may be more appropriate in some circumstances. Gender-neutral pronouns, such as ‘zie’ and ‘hir’, may also be used. Most importantly, pronouns used should align with those requested by the person and should be used consistently. If you are unsure, respectfully ask the person what their preferred pronoun is and ensure that you use this pronoun when communicating.

There are some issues that require clarification. Could you provide the context in which these terms would be used. Could you also indicate the difference between ‘zie’ and ‘hir’, when they should be used and how these words are pronounced. This information would make it easier for IMEs when dealing with people who do not regard themselves as fitting into the system of binary genders.

WorkSafe response

Thursday 24 May 10.00 am

Thanks for contacting the Independent Medical Examiners (IME) Team.
Your enquiry is important to us and we will be in touch within 1 business day.

From me to WorkSafe

Monday 28 May at 5.30pm

I have not received a response to my email sent on Thursday, can I expect to receive a response soon?

WorkSafe response

Tuesday  29 May

May We apologise for the delay in getting back to you, we have referred your questions to a different business unit for review as this document was created by a different area of WorkSafe. We hope to have an answer for you shortly.

On it goes


Wednesday 30 May at 3.45pm

Re: Clarification of article within IME Insight May 2018

To clarify further, the standard number of questions you should receive within the referral letter is 12. The Agent may request additional questions however they should not exceed a total number of 15 (questions).

From me to WorkSafe

Wednesday 30 May 4.46pm

You advise that agents should ask no more than 15 questions.  How does this reconcile with the New mental Injury Eligibility Questions?  There are 13 main questions and a possible 25 subsidiary questions.

WorkSafe response

Wednesday 30 may 5.00pm

Thanks for contacting the Independent Medical Examiners (IME) Team.
Your enquiry is important to us and we will be in touch within 1 business day.

Friday 1 June 2018


No response to either query!

Instructions on language from WorkSafe Victoria

May 21, 2018

In its most recent communication WorkSafe Victoria has advised IMEs about appropriate use of “gendered” language.   I make no commentary other than to note the threat if you do not comply.  Who would be an IME?.

The full document reads as follows.

Gendered language

WorkSafe has developed a guide for IMEs about the appropriate use of gendered language.

Binary male/female language expressed through gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect our community diversity.

The Guide

This document provides Independent Medical Examiners (IMEs) with a guide to the appropriate use of gendered language.

Binary male/female language, expressed through the use of gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect the diversity of our community.

What does it mean to misgender a person?

The Victorian Government’s Inclusive Language Guide defines misgendering as:

Using language to refer to a person that is not aligned with how that person identifies their own gender or body. Most but not all intersex and trans people who identify as male prefer to be referred to as ‘he’. Most but not all intersex and trans people who identify as female prefer to be referred to as ‘she’. Some people prefer to be described with their first name only or a non-binary pronoun such as ‘they’ rather than a gendered pronoun.

To avoid misgendering, the use of gender-neutral pronouns such as they, them or their may be more appropriate in some circumstances. Gender-neutral pronouns, such as ‘zie’ and ‘hir’, may also be used. Most importantly, pronouns used should align with those requested by the person and should be used consistently. If you are unsure, respectfully ask the person what their preferred pronoun is and ensure that you use this pronoun when communicating.

Misgendering of a person may amount to a breach of the IME Service Standards. Please refer to ‘Conduct during examination’ in the IME Service Standards for more information.

November 2017

Who would be an IME in Victoria?

May 6, 2018

This year I decided not to apply to become an IME with WorkCover. Some years ago I had been an IME with the TAC but I notice that I had had no referrals for six months or so and contacted the TAC and was told that I had resigned! I protested about this and demanded to see what had been written. “Oh no, you resigned over the phone!” It was clear I was not wanted and this was a way of removing me from the scene. I continued to apply to be a WorkCover IME but the experiences of working with WorkCover led me to deciding not to reapply. Those who have reapplied both for the TAC and WorkCover have found it a demeaning experience. They have had to be interviewed in person by a functionary, there has been no input from anybody in the profession. They have had to agree to an onerous contract(called a declaration) in which they must abide by the fee schedule.  To give you an idea this is what is said about dispute resolution

If a dispute arises in relation to my provision of services as an IME (other than a notice given by WorkSafe under clause 26 of this declaration), I or WorkSafe may request that the following dispute resolution process be utilised:

a) In the first instance the dispute will be discussed between myself and the WorkSafe’s Manager, Provider Performance and Quality;

b) If the dispute remains unresolved the matter will be referred to the WorkSafe’s Director, Worker Support and Health (or his or her nominee) and myself or my nominated representative;

c) If the dispute remains unresolved, it will be submitted to a mediator. The cost of mediation will be shared equally between WorkSafe and the IME; d) Where the parties to the dispute cannot agree on a mediator, the Chief Executive of the Law Institute of Victoria (or his/her nominee) will be asked to appoint a mediator; e) The above process will be carried out within 30 days of notification of the dispute.

WorkSafe Victoria have no interest in your safety and make no provisions for dealing with this issue.  The fee schedule is lower than any other state or territory.

WorkSafe Victoria- dialogue with psychiatrists II – another bit of chicanery

March 13, 2018

During 2017 WorkSafe Victoria invited the Victorian committee of the College Faculty of Forensic Psychiatry to meet and discuss a number of issues including who should do IME work, documentation, questions asked, timing, security, and even fees. We had two meetings, I posted my thoughts at that time, they proved to be prescient! We were to have another meeting in July that did not proceed and we heard nothing further.

All IMEs then received a document  dated 31 January, 2018 that included several attachments.

Dear IMEs,
At WorkSafe we are looking for better ways to work with our IME’s.
It is important to us that you are kept up to date with relevant and useful information to support you in your roles as IME’s with WorkSafe.
Strategic Communications
Firstly, we are trying a different approach to the  way that we will communicate with you to keep you informed about important updates through our IME Insight.
In this issue:

  • Mental Injury claims and the updated questions for Psych IME’s (see attachments)
    · Conflict of Interest: Have you got the processes in place to mitigate Conflict of Interest?
    · Recruitment Process (Update of the waves & dates)

We want to hear from you
Have ideas or feedback on how we can support you in your roles or to let us know if this type of update is useful, please contact
(See attached file: IME newsletter – issues one – jan 18.pdf)(See attached file: New Mental Injury IME Question Effective 18 December 2017.docx)(See attached file: New Mental Injury Questions A Guide for Practitioners V1 Dec 2017.docx)(See attached file: New-IME-Mental-Injury-Questions-IME-Coms V3 2018 (002).png)
Kind Regards
WorkSafe IME Provider Engagement Team

One attachment was the newsletter called ‘IME Insight’ dated 1 January 2018, a one-page document stating that there were new mental Mental injury questions

Another was “the New Mental Injury IME Questions” of which there are eight questions but so many sub- questions that in all there are a total 36 questions. There is also a guide to these questions, These questions in this guide were developed by the following:

Karen Chapman | Project Co-ordinator

Chris Lyons | Provider and Quality Co-ordinator

Dielle Felman  | Consultant Psychiatrist MBBS (Hons), MPM, FRANZCP

Dr Felman was placed in a difficult position.  She was asked to give advice about these questions but had no involvement with the Forensic faculty committee and was essentially speaking for herself.

The chair of the forensic faculty Victorian committee then contacted Lisa Boyd,who had been running the process and was told “We are looking for a very broad-based approach to liaising with psychiatry”; having the Forensic Faculty as the point of liaison does not seem to fit with this!

So much for consultation – Not happy Worksafe. It is consistent with my experiences with WorkSafe extending over 25 years.  I have been a member of the AMA VWA/TAC committee during much of this time and it is the same old story, bullshit consultation (to tick the box) and on they go doing what they intended doing all along.  I have decided to not re-apply to be an IME.

Wrongs Act Claims – issues

Wrongs act claims are usually complex and difficult. Most of the claims I see relate to medical negligence, bullying at school and falls, including some bicycle accidents where there was no car involvement.

There are significant problems with medical negligence claims in determining whether or not the impairment is secondary to a physical injury. For example a delay in diagnosis of cancer probably has a non-secondary component but what about failed surgery? What about stillbirths?

I have seen some claimants with complex physical and mental health issues prior to the alleged incident who relate the totality of their current health issues to the particular incident.

I was involved in a case some time ago with the claimant who had been prescribed sertraline by a psychiatrist and had developed an intractable rash that persisted for two years despite a variety of treatments and referrals to dermatologists. In desperation this woman searched the Internet and found there was a small number of cases where a rash arose from sertraline. She stopped the sertraline and her rash resolved.she made a claim against the psychiatrist. She was angry and distressed that she had had to put up with the rash for two years.

There seemed to be 2 questions, what was her diagnosis? Was her condition secondary to physical injury?

I took the view that the rash was a physical injury and that any psychiatric sequelae was secondary to that injury.

School bullying claims take a long time to assess. I usually interview the parents separately from the child. I am usually provided with school reports, psychologist reports and so forth. It is surprising how often the response of schools is so inadequate. On a number of occasions the offenders have received counselling but the person who was the subject of the bullying and that person’s parents become regarded by the school as a nuisance. One school principal wrote to a parent after yet another complaint saying “if you are not happy with a school, take your child elsewhere!”

Another issue is that psychiatrist have frequently asked by solicitors to do a GEPIC impairment assessment when assessing a Wrongs act claim. This is correct. However solicitors sometimes want you to include the GEPIC table and percentage impairment in your report. This is not correct. I have included a section of the act, note the highlighted section in (2).

WRONGS ACT 1958 – SECT 28LN Certificate of assessment


  1. 28LN(1) amended by No. 102/2003 s. 16(1).

(1)     Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.

(2)     The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.

eReports response to my Blog

February 27, 2018

In a blog written on 31 August, 2017 I noted ‘I have been reliably told that eReports were unhappy about my reference to them in a previous blog and were contemplating legal action!!’

I received an email from Ruth Hogarth, the chief operating officer of eReports dated 19 January 2018 stating that she was unaware of the Blog until recently and had never contemplated taking legal action. She wrote “I was very surprised that without contacting us, or verifying with us the authenticity of such claims that you were published what is very much untrue“. I am happy to accept that, although my informant remains adamant that the information provided was correct.  The underlying issue was that eReports had claimed they had been provided with appointment blocks by WorkSafe who sent out a letter refuting that. Since eReports have been called out as deceptive (at the least) it is a question of who is more credible, my informant or eReports.

How to engage with medicos- SA ReturnToWork and fees

February 26, 2018

I was surprised and pleased to receive the following paper from SA .  What a contrast to the situation in Victoria!

Medical fees


ReturnToWorkSA is seeking to gazette fees for medical services for 2018-19, to be effective 1st July 2018.

The Return to Work Act 2014 requires us to consult with stakeholders prior to a fee schedule being published and this paper forms part of the formal consultation process. We regard this as a valuable process, and all feedback is carefully considered.

This paper describes the proposed changes and fee calculation methodology for provider services and invites feedback. The formal consultation process will be for a four week period commencing on Wednesday, 7th February 2018.

Please provide your feedback to ReturnToWorkSA by close of business on 7th March 2018 to

If you have any questions regarding this document, please contact Simon Hynes, Program Lead, Provider Regulation and Support on 8238 5757 or email before the closing date so these can be considered within the consultation timeframe.

Current fee calculation methodology

The Return to Work Act (2014) requires ReturnToWorkSA to set fees based on the average charge to private patients for the relevant service. The amount fixed for the service must not exceed the amount recommended by the   relevant professional association.

ReturnToWorkSA obtains data from Medicare Australia to calculate average private charges for provider groups. Fees are then adjusted relative to this benchmark, based on Scheme needs.

The fee increases recommended in this paper (excluding GP consultations) have been calculated after taking this information into consideration.

Medical Practitioner fees

ReturnToWorkSA with the Australian Medical Association (AMA) through a Memorandum of Understanding has agreed to parity with published AMA rates for General Practitioner Attendance fees up to but not exceeding an annual 5% increase.

The following table illustrates the Average Private Charge (APC) changes, the percentage differences for APC and Medicare charges and the proposed changes for the ReturntoWorkSA medical fees:


APC change for 2017-18 RTWSA vs

APC for 2017-18


Medicare Charge for 2017-18

Proposed RTWSA Change
General Practitioner Attendance fees (Within Schedule 1A) -0.2% 41.1% higher 96.5% higher 1.8% increase (AMA rate equivalent)
Remaining Schedule 1A and 1B fees -0.2% 41.1% higher 96.5% higher No increase


Given there has not been an increase in average private charges for medical fees during 2017-18, there is no proposed increase to medical fees (excluding General Practitioner Attendances) for 2018-19.


Next Steps

To enable fees to take effect from 1st July 2018, ReturnToWorkSA will:

  • consider and respond to feedback provided by stakeholders; and
  • seek the approval of the ReturnToWorkSA Board and the Minister for Industrial Relations for publishing in the South Australian Government


Further information

If you have any questions or comments regarding this paper, please contact Simon Hynes, Program Lead, Regulation and Scheme Support on 8238 5757 or email by close of business on 7th of March 2018.

Review interviews – What to write?

From time to time all of us have been required to review a claimant and prepare a further report. This often leads to a dilemma, how much to include in this report from the original report? Some assessors make no mention of the original report or their initial opinion. Others virtually reiterate their initial report.

Confounding the situation is the provision of other reports, some predating the initial report. How to deal with those?

My general view is that my report should tell a story. Accordingly I weave into my report information provided from other reports according to their chronology. I find this far more readable than having a summary of other reports provided in one section after the examiner has written about the incident, treatment and current situation. I find it frustrating to have to read backwards and forwards relating other reports to the timeframe provided by the examiner.

When I have been cross-examined, having written a report and then a review report the usual way of dealing with the review report is that I am asked to pick up the story from when I last saw that person. So why don’t I simply carry on from where I left off.

On a number of occasions I found that a review report is the only report I receive and the type of report carrying on from the last interview I mentioned above gives no background and to that extent is not informative.

Accordingly I provide a brief account of the incident and its aftermath and of any pre-existing relevant matters. I deal with the other medical reports by interweaving them into this narrative.

One note of caution. I saw a man for a WorkCover claim who was a carpenter working for his father’s construction company. His father and older brother were directors of the company. The company failed and his father and brother abandoned it. He was left to pick up the pieces. He had no training in management but felt committed to doing what he could for the subcontractors for the company, many of whom were his friends. It was in that context that he became severely anxious and depressed and ceased work 3 months later.

I saw him initially and then six more times for review. Every time I saw him for review, my focus was on what had happened since I had last seen him. I failed to go back to the events surrounding his psychological collapse. When I was cross-examined the barrister took me to my description of the events surrounding his breakdown. I was surprised to realise how scanty was my description and embarrassed to realise that the two or three sentences I had written were largely taken from a psychological report written at about that time. I had checked with him and he had agreed that what she had written was correct. Nevertheless it was clearly inadequate and my failure to ask him further about this at the six subsequent visits left me with egg on my face.

As usual, when I have stuffed up like this, I go through 24 hours of managing my wounded ego and then focus on “how do I make sure this never happens again”.  So when I see somebody for review I always make sure that my description of the initial event is accurate and if any further questions are in my mind I use the occasion to clarify these.

One last point, if the event for which I’m seeing the claimant occurred only 6 to 9 months previously or if the claimant is about to have surgery or to commence psychological or psychiatric treatment or attend a pain management program then I recommend that the claimant be sent back to see me after another 6- 12 months when the situation is likely to have stabilised.

Refining your GEPIC assessments

December 8, 2017

I have devised a method of refining your GEPIC scores using the severity table on page 1569 in the Victorian government Gazette dated 27 July, 2006. See how it works for you?


How to use the Severity Rating Table in the GEPIC

  • Each class is divided into 3 levels of severity, Low, Medium and High range
  • Use the Severity Rating to determine the percentage range in the median class.

Severity Rating Table in the GEPIC (p1569)

Classes 1 2 3 4 5
Low 0-1% 10-12% 25-30% 55-60% 75-80%
Medium 2-3% 14-16% 35-40% 65-70% 85-90%
High 4-5% 18-20% 45-50% 70-75% 95-100%


For example:

  • Intelligence                Class 1   Low severity (L)
  • Thinking                     Class 2   High (H)
  • Perception                  Class 2   Medium (M)
  • Judgement                 Class 2   High (H)
  • Mood                           Class 3   Low (L)
  • Behaviour                   Class 3   Medium (M)

1L, 2H, 2M, 2H, 3L, 3M – Median Class 2

Severity ratings adjusted for Class 2, below = L above = H

1L = L, 2H = H, 2M = M, 2H = H, 3L = H, 3M = H

In order LMHHHH – median severity = H

High severity in Class 2 18-20%

WPI is 20%

Worked Example

  • Ray – 45 year old CEO local council
    • Council corruption
    • Whistleblower – threats made
    • Caught drink driving in Council car after work function
    • Breakdown
    • Attempts suicide – hospitalised
    • 2 years later – unemployed, wife left, broke
    • Psychiatric treatment
    • Severely depressed, can’t concentrate, ’paranoid’, pseudohallucinations, gambled away his money, panic attacks, guilty, suicidal thoughts, withdrawn, road rage

Determine Impairment and severity of the impairment within the median class.

  • For each class selected determine severity
    • Low (L)
    • Medium (M)
    • High (H)
  • Determine median class
  • determine median severity within that class.
    • Any severity measures in lower class become Low range L in median class
    • Any severity measures in higher class become High range H in median class


  • Intelligence              Class 1                 Low severity (L)
  • Thinking                   Class 3                  High (M)
  • Perception               Class 2                  Medium (M)
  • Judgement              Class 3                  High (M)
  • Mood                        Class 3                  Medium (M)
  • Behaviour                Class 3                  Medium (M)

1L, 3M, 2M, 3M, 3M, 3M – Median Class 3 (no secondary or consequential impairment)

Severity ratings adjusted for Class 3, below = L above = H

1L = L, 3M = M, 2M = L, 3M = M, 3M = M, 3M = M

In order LLMMMM – median severity in Class 3  = Medium

Medium severity in Class 3 –  35-40%

WPI Pure Mental Harm or Non secondary impairment is 35%



Safe Work Australia – a useful guide to nationwide trends

October 12, 2017

I try to look at the website of Safe Work Australia because it is full of information about nationwide issues and issues in particular states. There is a comparison of the various workers compensation schemes in the different states and a plethora  of statistical information. It is well worth a look.

For example they are attempting to develop a nationwide system of impairment assessment (including the PIRS)

Permanent impairment

When someone sustains an injury it may result in a permanent impairment.

A prerequisite to determining the level of permanent impairment is the understanding that it shouldn’t be decided until the claimant has improved as much as is possible; that is when their impairment has become stable or isn’t likely to improve despite medical treatment.

  • In addition to the assessment principles laid out in the AMA Guides, scheme legislation also provides substantial guidance on how to determine whether or not impairment is permanent.

In 2013, we made recommendations to the Ministerial Council on nationally consistent arrangements to assess permanent impairment, which were agreed to by the majority of jurisdictions in early-2014.

As a result we are now developing a national permanent impairment guide and a system for updating it, as well as developing a training package for medical practitioners who want to become permanent impairment assessors.


Safe Work Australia’s advice re bullying

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.

It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.

Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.

Some examples of workplace bullying include:

  • abusive or offensive language or comments
  • aggressive and intimidating behaviour
  • belittling or humiliating comments
  • practical jokes or initiation
  • unjustified criticism or complaints.

What is not workplace bullying

Not all behaviour that makes a worker feel upset or undervalued is workplace bullying.

Reasonable management action taken in a reasonable way is not workplace bullying. Managers are responsible for monitoring the quality and timeliness of work and providing staff with feedback on their performance. If performance issues need to be addressed, the conversation needs to be constructive and supportive, and focus on the positives as well as the negatives. It should not be humiliating or demeaning.

Unreasonable behaviour may involve unlawful discrimination or sexual harassment, which in isolation is not workplace bullying. Discrimination on the basis of a protected trait in employment may be unlawful under anti-discrimination, equal employment opportunity, workplace relations and human rights laws.

Differences of opinion and disagreements are also generally not workplace bullying. However, in some cases, conflict that is not managed may escalate to the point where it becomes workplace bullying.

Implications of workplace bullying

There are legal obligations to consider all health and safety risks in the workplace including workplace bullying.

Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws.

Workplace bullying is best dealt with by taking steps to prevent it from happening and responding quickly if it does occur. The longer the bullying behaviour continues, the harder it becomes to repair working relationships and the greater the risk to health and safety.

Effects of bullying

Workplace bullying can seriously harm worker mental health with depression, psychological distress and emotional exhaustion common outcomes for bullied workers. These health outcomes may adversely impact the workplace with workers taking sick leave and being less productive (presenteeism), both of which damage productivity.

Managing the risk of workplace bullying

Organisations can minimise the risk of workplace bullying by taking a proactive approach to identify early, any unreasonable behaviour and situations likely to increase the risk of workplace bullying occurring.

Organisations should implement control measures to manage these risks, and monitor and review the effectiveness of these measures. This could include activities such as:

  • Regularly consulting with workers and health and safety representatives to find out if bullying is occurring or if there are factors likely to increase the risk of workplace bullying.
  • Setting the standard of workplace behaviour, for example through a code of conduct or workplace bullying policy.
  • Designing safe systems of work by clearly defining jobs and providing workers with the resources, information and training they need to carry out their work safely.
  • Implementing workplace bullying reporting and response procedures.
  • Developing productive and respectful workplace relationships through good management practices and effective communication.
  • Providing information and training on workplace bullying policies and procedures, available support and assistance, and how to prevent and respond to workplace bullying.
  • Prioritising measures that foster and protect the psychological health of employees.

Benefits of preventing workplace bullying

In 2016, we published a report that outlines how improving management commitment to psychological health and safety could be an innovative strategy to reduce lost productivity, as well as substantially improve the wellbeing of workers.

The report interrogated data from the 2014–15 Australian Workplace Barometer Project, collected via telephone from 4,242 employees nationwide.

Key findings included:

  • The total cost of depression to Australian employers due to presenteeism and absenteeism is estimated to be approximately $6.3 billion per annum.
  • Workers with psychological distress took four times as many sick days per month and had a 154% higher performance loss at work than those not experiencing psychological distress. This equates to an average cost of $6,309 per annum in comparison with those not experiencing psychological distress.
  • Relative to workers with high engagement, workers with low engagement have approximately 12% more sick days per month and an average performance loss of eight per cent, costing employers $4796 per annum.

What to do if you experience bullying

  • Check if your workplace has a bullying policy and reporting procedure you can follow. The policy should outline how your organisation will prevent and respond to workplace bullying.
  • If you feel safe and comfortable doing this, calmly tell the other person that you object to their behaviour and ask them to stop it. They may not realise the effect their behaviour is having on you or others, and your feedback may give them the opportunity to change their actions.
  • Seek advice from another person, for example a supervisor or manager, human resources officer or health and safety representative to help you work out if the behaviour you have been experiencing is workplace bullying, as early as possible. Your employer (or other PCBU) can’t address the problem if they don’t know about it.

Further advice

SWA is not a regulator and cannot advise you about bullying in the workplace. If you need help, please contact your state or territory work health and safety authority.

In some circumstances, an order to prevent or stop a worker being bullied can be made under the Fair Work Act 2009 by contacting the Fair Work Commission (link is external).

The Australian Human Rights Commission (link is external) investigates and resolves complaints (under federal laws) of bullying based on a person’s sex, disability, race or age. It can also investigate and resolve complaints of workplace bullying based on a person’s criminal record, trade union activity, political opinion, religion or social origin.

There are a number of services available to people who are feeling depressed, stressed or anxious as a result of bullying behaviour. They include: