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.

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.


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.

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.

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.


WorkSafe Victoria- dialogue with psychiatrists

June 15, 2017

A small group of psychiatrist (including myself) in Victoria are negotiating with WorkSafe with regard to a number of issues including remuneration. Incidentally go to ‘Resources” to have a look at the current fee schedules around the country. This groupare also looking at issues such as suitability to become an IME. My own view is that people should have at least five years postgraduate clinical experience before they are ready to do this type of work. Some of my colleagues disagree and say that people who have done the forensic training program should be able to work as IMEs immediately. I am totally opposed to this.I’m also concerned that people do not seem to understand that we have an essentially adversarial relationship with the WorkCover authority. There have been all sorts of suggestions about accreditation, there was even one suggestion that only those who see at least one IME per month every year should have continuing accreditation. The mind boggles. I hope that a dash of sanity will creep into these discussions. My concerns are with regard to providing appropriate training for IMEs, appropriate remuneration, appropriate mechanisms for dealing with substandard reports, continuing training opportunities and a recognition of the very special nature of the work that we do.

Harmonised Expert Witness Code of Conduct

March 8, 2017



As outlined in our November 2016 blog, Sweeping Changes for Federal Court Practice Notes, the Federal Court, in late 2016, issued 26 updated practice notes for use in federal litigation. The previously used Practice Note CM7 Expert Witnesses in Proceedings in the Federal Court of Australia was replaced with the considerably lengthier Expert Evidence Practice Note (GNP-EXPT) which included 2 annexures, the Harmonised Expert Witness Code of Conduct in Annexure A and the Concurrent Expert Evidence Guidelines in Annexure B.

In this blog, we consider the approach taken in the Harmonised Expert Witness Code of Conduct and the adoption of this Code by a number of states.

Content of the Harmonised Code

The Harmonised Expert Witness Code of Conduct covers issues which are commonly covered by the state based expert witness codes of conduct including:

  • The application of the code;
  • An expert witnesses’ duties to the court;
  • Requirements concerning the content of the report;
  • Protocol for when an expert changes their opinion;
  • Duty to comply with the court’s directions; and
  • Expert requirements when participating in expert witness conferences.

Adoption by the states

Currently, 4 states and territories have adopted the Harmonised Expert Witness Code of Conduct: ACT, NSW, Tasmania, and Victoria. As a result, these states

have a uniform approach to expert witness conduct when compared with the approach in the Federal Courts.

Advisory firm KordaMentha have provided the following summary of the approach taken by each state with respect to their expert witness codes of conduct[1]:

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The benefits of a uniform approach to expert witness conduct are widespread.

From the perspective of the expert witness, a uniform standard of expert witness obligations

creates a greater level of consistency across jurisdictions, which will in turn reduce

the complexity for experts operating in different jurisdictions.

It will also enable experts to produce reports more efficiently, with less time spent complying with

state-specific rules and more time focusing on the content of the report.

From the perspective of legal counsel and the client, a uniform system of expert witness guidelines

reduces the need for state-specific guidance for expert witnesses,

which should reduce time spent providing guidance to expert witnesses

who give testimony in multiple jurisdictions. Less time spent by legal counsel on any one task translates to lower fees for the client

and as such, a harmonisation of expert witness codes of conduct should lead to lower fees in relation to preparing expert witnesses for trial.

Non-Adopting States

While the expert witness codes of conduct utilised in the 4 states which have not adopted the Harmonised Expert Witness Code of Conduct

are fairly similar to the harmonised code, differences do exist which add to the requirements with which expert witnesses must comply.

For example, the South Australian code of conduct includes a requirement that an expert witness report ‘identify the differences (if any)

in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’. Such a requirement is not present in the harmonised code of conduct.


The harmonisation of expert witness codes of conducts reflects an exciting step forward for both expert witnesses and

legal counsel responsible for ensuring that the witnesses are aware of the requirements to which they must adhere

in the jurisdiction in which they are testifying. A uniform approach across the nation’s jurisdictions increases efficiency and productivity

in the legal industry and is, without a doubt, a positive step forward for expert witnesses and the legal industry.

[1] Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha,


Stress Claims – How common are they and have they become more common?

November 28, 2016

Mental stress has accounted for an average of 95% of mental disorder claims over the past 10 years.


SafeWork Australia produced a report about this in April 2013.


Their findings were:

Mental stress claims are the most expensive form of workers’ compensation

claims because of the often lengthy periods of absence from work typical of

these claims.

>> Mental stress claims are predominantly made by women.

>> Men and women are more likely to make a claim for mental stress as they

get older but after they reach 54 years the likelihood that they made a claim


>> More Professionals made claims for mental stress than other any other

occupation with over a third of their claims made for Work pressure.

>> There were more mental stress claims made for Work pressure than any

other sub-category.

>> The hazards that result in mental stress claims vary with worker age.

Younger workers are more likely to make claims as a result of Exposure to

workplace or occupational violence, whereas Work pressure is the main

cause of mental stress claims for older workers, peaking for those aged

45–49 years.

>> General clerks, School teachers and Police Officers accounted for the

majority of claims for Work pressure.

>> Women were around three times more likely than men to make a workers’

compensation claim due to Work-related harassment &/or workplace

bullying. Approximately one-third of all claims in this mental stress subcategory

were made by workers in the occupational categories of Advanced

clerical & service workers and General clerks.

>> For the industries with the highest number/rate of mental stress claims, the

majority of claims were for Work pressure. This was particularly true in the

Education sector. Claims for Exposure to workplace or occupational violence

were notable in the Retail trade industry, while the Transport & storage and

Health & community services industries dominated claims for Exposure to a

traumatic event.


WorkSafe Australia produced a further report in 2015 – Work-Related Mental Disorders profile


Their findings were that 6% of all workers compensation claims were for mental disorders .


The typical compensation payment for such a claim was $23,600 totalling $480 million for the 7820 Australian claimants. The average period of time spent off work was 14.8 weeks. 39% of these claims were for harassment/bullying/exposure to violence. 90% of all mental disorder claims were attributed to stress.


65% of all mental disorder claims were awarded to workers aged 40 or over.


For 1 million hours of work there were 0.5 mental disorder claims.


Occupations most at risk:

First responders-police, paramedics and firefighters comprising one in five of this group

welfare and community workers affirm one in 10 were compensated, prison officers, bus and rail drivers and teachers of whom one in five were compensated.


The more common conditions included reactions to stressors (41%), anxiety/stress disorders (28%) and post traumatic stress disorder (11%). Combined they accounted for, on average, about 4/5 mental disorder claims over the period.


The most up-to-date statistics are those provided by WorkSafe Western Australia in October 2016.


Their findings were that: Over four years, the number of stress-related claims increased by 25 per cent.  In 2015/16, there were 547 stress-related claims lodged,  representing

3.2 per cent of all workers’ compensation lost-time claims.


Although the number of stress-related claims increased, the frequency rate (claims per million hours worked) for stress-related claims is stable.


Females accounted for 59 per cent of stress-related claims compared with 41 per cent for males.

In terms of prevalence of stress claims, female workers tend to have a higher frequency rate.

The top three industries for stress-related claims were:


Health care and social assistance           25%

public administration and safety            24%

education and training                               16%


The causes of stress and later claims included:


Work pressure                                              39%

Harassment and bullying                           23%

exposure to a traumatic event                               19%

exposure to workplace violence            14%

other causes                                                  5%


There appears to be a significant drop in the number of stress-related claims in WA representing 3.2% of all workers compensation lost time claims, the WorkSafe Australia statistics were that 6% of all claims were stress-related. In Victoria in the late 1990s about 5.5% of all claims were stress-related. There appears to have been little real change in the incidence of stress-related disorders over the last 20 years.

APA guidelines for the psychiatric evaluation of adults 2015

September 16, 2016

The American Psychiatric Association published guidelines for the psychiatric evaluation of adults in 2015. These guidelines occupy 170 pages. This is about the most complete and comprehensive guide I have ever seen although whether or not it is of any use is entirely up to you.

A Glimpse of the Monash-Epworth Longitudinal Head Injury Outcome Study

September 15, 2016

The Longitudinal Head Injury Outcome Study follows up a large cohort of individuals who have sustained moderate to severe Traumatic Brain Injury (TBI). This project aims to provide a comprehensive picture of the changes experienced by people who have sustained a TBI as well as their families over a period of 20 years. Changes are captured in terms of living skills, study, employment, recreation, as well as social and personal relationships. In addition, factors predicting outcomes are identified in each of these domains.

This study comprised 666 individuals from the Monash-Epworth Rehabilitation Research Centre (MERRC) database who had been competitively employed prior to injury, for whom Compensation data Base data were available and who had received loss of earnings payments after injury. In addition, using the CRD the authors were able to begin examining whether specific types of service utilisation were associated with employment status. Each individual’s services were aggregated over the first six months post-injury. This included medical services, such as surgeries, pathology, radiology, and psychiatry, as well as allied health services, which included psychology, social work, and vocational assistance.

The authors have highlighted the presence of a good recovery group as well as groups of individuals who show poorer outcomes despite having similar injury severity. These are associated with greater emotional distress, low economic and family support, low resilience and greater service utilisation. This group also incurs greater costs. They also identified a group of individuals who were potentially affected by reduced self-awareness of injury-related changes, leading to under-reporting of problems and conversely by emotional distress potentially leading to some over-reporting of symptoms. Their findings further highlighted the factors other than injury severity that contribute to longer-term outcomes. These include the personal strengths of the individual, including independence and self-esteem and resilience, as well as economic and family supports, their level of emotional distress and motivation to recover.

The authors have identified some key predictors of early return to work (RTW) as well as more persistent unemployment. Individuals were more likely to return to work in the first 6 months if they had shorter duration of post traumatic amnesia (PTA) and if they were in managerial or professional occupations prior to injury. A combination of background, injury-related, and service utilisation variables predicted more persistent unemployment between 6 months and three years post-injury. Individuals were more likely to experience a protracted RTW if they were older, female, were labourers, machinery workers, or technician prior to injury, had longer duration of PTA, and had a moderate or major limb injury. In addition, greater utilisation of specialist practitioner, psychology services, and analgesic medication within the first 6 months was associated with delayed RTW. Conversely, assessment and rehabilitation for return to driving was associated with earlier RTW, highlighting the importance of driving for RTW. These findings demonstrate the roles of complex physical injuries, pain and mental health factors in delaying return to employment following TBI.

Post-traumatic stress disorder was the most common anxiety disorder and was associated with poor quality of life. PTSD was most commonly diagnosed between 6 and 12 months post-injury. Extended periods of PTA, cognitive dysfunction and hospitalisation following TBI may postpone symptom development rather than reduce the risk, with subsyndromal symptoms frequently preceding the development of full PTSD. This provides a potential time-window for early identification and treatment. Rehabilitation clinicians should be aware that patients might develop clinically significant trauma symptoms despite protracted post-traumatic amnesia. There was high comorbidity between PTSD, anxiety, and depression as well.

The cross-cultural study demonstrated the strong influence of cultural background on outcome following TBI over and above injury severity and other demographic factors. As a group, individuals from culturally and linguistically diverse (CALD) backgrounds reported less independence in daily activities, were more emotionally distressed, showed a heightened awareness of injury-related changes and less problem-focused coping than individuals from English-speaking backgrounds. They tended to believe that more external factors such as Chinese medicine, praying or having family take care of them would help their recovery. They were less likely to believe that their own behaviour could help their recovery. They were more distressed about role changes. However, there were marked differences across geocultural regions, and differences in the demographic characteristics of these subgroups (e.g., age, education) also appear to have been influential.

Changes in sexuality following traumatic brain injury

  • Individuals with TBI tended to score lower than their partners on the measure of sexual functioning
  • Approximately one third of the TBI group scored below the 2nd percentile for orgasm, as well as for sexual arousal, sex drive, and overall sexual function
  • Participants with TBI were more likely to have lower interest in sex compared to their partners, which included both men and
  • The findings suggest that a significant proportion of individuals with TBI have organically based changes in sexual function as a consequence of
  • These impact on their sexuality and that of their

There may also be relationship issues that contribute to a decline in sexual functioning, including cognitive and behavioural changes as well as other stressors.

The authors have highlighted the presence of a good recovery group as well as groups of individuals who show poorer outcomes despite having similar injury severity. These are associated with greater emotional distress, low economic and family support, low resilience and greater service utilisation. This group also incurs greater costs. They also identified a group of individuals who were potentially affected by reduced self-awareness of injury-related changes, leading to under-reporting of problems and conversely by emotional distress potentially leading to some over-reporting of symptoms. Their findings further highlighted the factors other than injury severity that contribute to longer-term outcomes. These include the personal strengths of the individual, including independence and self-esteem and resilience, as well as economic and family supports, their level of emotional distress and motivation to recover. Having identified these key measures and profiles in patients assessed 6 months-10 years post-injury the authors aim to see if these measures are predictive in the early stages after injury. If it is possible to identify these groups early they may be able to develop and tailor appropriate treatments to address issues relevant to each profile with the ultimate aim of improving outcomes.