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.
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.
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.
March 13, 2018
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
WRONGS ACT 1958 – SECT 28LN
- 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.
February 26, 2018
I was surprised and pleased to receive the following paper from SA . What a contrast to the situation in Victoria!
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 firstname.lastname@example.org
If you have any questions regarding this document, please contact Simon Hynes, Program Lead, Provider Regulation and Support on 8238 5757 or email email@example.com 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
APC for 2017-18
Medicare Charge for 2017-18
|Proposed RTWSA Change
|General Practitioner Attendance fees (Within Schedule 1A)
||1.8% increase (AMA rate equivalent)
|Remaining Schedule 1A and 1B fees
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.
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
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 firstname.lastname@example.org by close of business on 7th of March 2018.
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)
- 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%
- Ray – 45 year old CEO local council
- Council corruption
- Whistleblower – threats made
- Caught drink driving in Council car after work function
- 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%
August 24, 2017
The RANZCP Committee for Continuing Medical Education have told us that the following activities would meet the new 5-hour (Section 3) ‘Practice Development requirement’:
- Peer analysis of 5 (or more) reports, using a structured tool such as the revised Worksafe Proforma, with view to revision and repeat of process each year
- Reflection, with peer(s), on one’s own evidence in court as documented in Austlii (http://www.austlii.edu.au/)
- Analysis of Questionnaire data for claimant/report subject re: process of their assessment (not content/opinion)
- Practice audit by peer of processes such as consent forms, privacy policies, intake process
- Survey of referrers re: e.g. turnaround time and other process issues
I have started some of this recently. I have a questionnaire for claimants, so far 31 people have completed it. I am refining a questionnaire for referrers and
I have been using http://www.austlii.edu.au/ to look at judge’s decisions about cases in which i have been a witness – interesting reading! It lists more than 600 but many of
those are referring to the GEPIC that I co-authored with Nigel Strauss and George Mendelson. i will find out more about this structured tool business.
It seems onerous but doable.
August 9, 2017
There were complaints by the ombudsman that claims agents were using preferred psychiatrists, WorkSafe have endeavoured to deal with this by centralising the appointment process however anecdotally it appears that they have outsourced this to others including eReports and other such agents totally going against the concept they are espousing.
Read below to see the drama unfolding. I will keep you informed
Since my last blog in June 2017 there have been further meetings with representatives of WorkSafe and representatives of the College and the medicolegal group. They intend to centralise all appointments for psychiatrists so as to prevent the notion of preferred psychiatrists and we expressed our concerns about being locked into providing timeslots with no guarantee of payment amongst other things. We have raised a number of other issues with them including funding but they refused to deal with this and it is clear that they have their own agenda (as always).
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week. We had great concerns about this.this was accentuated by the WorkSafe draft Service Standards document, the relevant parts were as follows:
- WorkSafe requires the IME to reply to any complaint received by WorkSafe and forwarded to the IME within 10 business days. The complaint must be addressed in full and the reply completed in a format acceptable for review by all parties including the injured worker. Failure to respond to the complaint in 10 business days may result in suspension of IME approval.
- When IMEs are renewing their AHPRA registrations, the IME is to forward a copy of their registration including any annexures, conditions, undertakings, or reprimands to WorkSafe to ensure continuation of IME approval with WorkSafe Victoria. In addition, WorkSafe Victoria will audit the IMEs approval status periodically, along with AHPRA registration audits.
- IMEs are expected to have access to email and internet services.
- IMEs must accept a reasonable number of referrals to conduct independent medical examinations. Subject to leave, as a general rule IMEs must have appointments available within 7 days of a request, or demonstrate that booked IME appointments are in place within 7 days of a request Repeated unavailability of appointments without reasonable excuse may result in suspension or revocation of IME approval.
2.2 The person to be examined must not be kept waiting for the examination for an unreasonable time. IMEs should aim to see Injured Workers within 30 minutes of the scheduled appointment time. In the event that the Injured Worker has not presented for the appointment time, it is up to the discretion of the IME as to whether the examination will go ahead.
2.3 IMEs should notify the referring case manager of any appointments that they need to cancel as soon as is practical after they become aware of the need for the cancellation, to allow the case manager to rebook the appointment with the next available IME.
2.4 IMEs should accept referrals or undertake an examination for conditions for which they are qualified and experienced to provide an expert independent opinion.
The following letter was sent to WorkSafe
We write to you on behalf of the Victorian Medicolegal Group concerning the above proposed “requirements”.
The Medicolegal Group represents the vast majority of psychiatrists engaged by WorkSafe as accredited Independent Medical Examiners. As such we have always considered ourselves to be an integral component of the Victorian WorkSafe system. Engaged by WorkSafe under the terms of the Accident Compensation Act 1985, our role has been to provide expert medical advice to assist WorkSafe in determining the outcome of claims and assisting with WorkSafe’s aim of returning injured workers to appropriate employment.
Over the years, we have demonstrated our willingness to proactively assist WorkSafe. For example, our members have conducted training sessions in report writing, provided quality assurance monitoring and even the development of the gazetted measure of impairment for Mental Disorders and training in its use.
The Medicolegal Group also facilitates monthly peer review group meetings for psychiatric IMEs, a critical element in optimising the ongoing production of high quality psychiatric reports for WorkSafe. We see no reason why this cooperation should not continue into the future and indeed is enhanced.
Our concern is with the changes to the booking systems in the proposed arrangements. We believe that it is unfair to request any contractor – let alone a medical professional – to make available blocks of hours on the possibility that these may be contracted. Where these hours are not actually booked for sessions, the Authority does not propose to compensate the practitioner. We believe that this is unduly harsh and has the potential to seriously affect the viable operation of our practices. We would point out that this system has, to an extent, been trialled with respect to stress claims and has already resulted in the realisation of these concerns. The planned roll-out of these changes to cover all bookings will only exacerbate the problems associated with this new process.
It is for this reason that members of our group have not signed the proposed agreement until we have resolved this matter.
We would point out that we have already endeavoured to resolve this matter directly with Worksafe but have been unsuccessful in receiving any meaningful response, if at all. Our concerns over this situation have been heightened due to the fact that, under the terms of the proposed agreement, it is the intention of WorkSafe to institute this new booking system by mid-August. As a consequence, on 28th June 2017, we sought urgent discussions with WorkSafe to propose an alternative booking system that we believe addresses the real needs of the Authority. Unfortunately we have received no reply.
In addition, correspondence and communications from corporate medicolegal providers, claiming to have agreements with Worksafe to undertake up to thirty psychiatric IME appointments per week, suggest that WorkSafe has sought arrangements with those providers outside the parameters of the agreement proposed to individual practitioners. We consider this a breach of good faith.
We believe that this situation could have been avoided if WorkSafe had in place a process of proper consultation with the profession to discuss changes such as these prior to their being issued. We note that we were advised by Worksafe representatives of the proposed arrangements at a face to face meeting in June, and expressed our concerns at this time. However this was not a consultation as Worksafe has proposed to roll-out the new requirements with no attempt having been made to respond to our concerns.
It is in this regard that we propose a regular process of consultation with the profession as a forum to highlight and discuss changes and improvements to the processes of our engagement and any other matters relevant to our engagement. We believe that this would restore good-faith relations between WorkSafe and our profession.
We would also point out that we write to you as a result of the failure of communication by officers of WorkSafe, who have failed to respond to our correspondence of the 28th June 2017 requesting urgent discussions to identify problems and find solutions.
Again we would stress that we believe that this is an unfortunate situation, given the history of previous cooperation between all parties concerned. We would appreciate the opportunity to address these issues to you in person at the earliest opportunity.
May 11, 2017
The Senate Community Affairs References Committee
Complaints mechanism administered under the Health Practitioner Regulation National Law May 2017
LIST OF RECOMMENDATIONS
5.14 The committee recommends that AHPRA review and amend the way it
engages with notifiers throughout the process to ensure that all notifiers are
aware of their rights and responsibilities and are informed about the progress
and status of the notification.
5.24 The committee recommends that AHPRA and the national boards develop
and publish a framework for identifying and dealing with vexatious complaints.
5.28 The committee recommends that the COAG Health Council consider
whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims.
5.34 The committee recommends that AHPRA and the national boards
institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification.
5.39 The committee recommends that AHPRA immediately strengthen its
conflicts of interest policy for members of boards and that the Chair of the board should make active inquiries of the other decision makers about actual or potential conflicts of interest prior to consideration of a notification.
5.44 The committee recommends that AHPRA develop a transparent
independent method of determining when external advice is obtained and who provides that advice.
5.48 The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
5.56 The committee recommends that AHPRA formally induct and educate
board members on the way the regulatory powers of the board can be used to
achieve results that both manages risk to the public and educates practitioners.
5.61 The committee recommends that AHPRA conduct additional training with
staff to ensure an appropriately broad understanding of the policies it
administers and provide staff with ongoing professional development related to the undertaking of investigations.
5.67 The committee recommends that the COAG Health Council consider
amending the National Law to reflect the Psychology Board of Australia’s policy
on single expert witness psychologists acting in family law proceedings.
5.71 The committee recommends that the COAG Health Council consider
making a caution an appellable decision.
5.74 The committee recommends that the COAG Health Council consider
whether notifiers should be permitted to appeal board decisions to the relevant tribunal.
5.80 The committee recommends that AHPRA take all necessary steps to
improve the timeliness of the complaints process and calls on the Australian
Government to consider avenues for ensuring AHPRA has the necessary
additional resources to ensure this occurs.
5.81 The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the
subject of complaints.
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:
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.
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.
 Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha,