The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) 1 April 2016 has just been released. It has been re-written to conform with the Safe Work Australia template. However there is no agreement by states using the GEPIC to use the PIRS and considering the disdain with which the PIRS and AMA6 are held together with the cost of training any such change is unlikely. The changes to the PIRS are as follows:
Psychiatric and Psychological disorders
Paragraph 11.4 from the 3rd edition, on the development of the PIRS has been removed to align to the Safe Work Australia national template guideline. The numbering therefore changes from 11.4 onwards (in comparison to the 3rd edition).
Clause Change
Introduction
Removed 3rd and 4th sentences that referenced s67 pain and suffering.
Removing the reference to s67 in this clause does not affect an exempt worker’s entitlement to claim for pain and suffering compensation. The reference to s67 in this clause was a case management tool which is now considered inappropriate in a medical guideline.
Co-morbidity
Removed the Alzheimer’s disease example. Replaced with a bi-polar disorder example.
11.10
Pre-existing impairment Minor change to second half of the paragraph for improved clarity, and to align with the wording in 1.28 in the Guidelines: Rephrased to:
The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
The recent NSW regulations, in particular 11(1)a has had an effect on the amount of work in NSW and increases the fee schedule for expert witnesses. I have included a commentary from McInnes Wilson Lawyers
(1) Costs are not to be included in an assessment or award of damages in respect of any expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of:
(a) one medical expert in any specialty (my emphasis) unless there is a substantial issue as to a matter referred to in section 58 (1) (d) of the Act
(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as
“medical assessment matters” ):
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The Regulations retain the existing fee structure with respect to medical treatment and medico-legal services however, provide an increase on the maximum allowable fees.
With respect to medical treatment, Clause 19 states that an insurer is not required to pay beyond what is specified in the Australian Medical Association (‘AMA ’) List of Medical Services,
The maximum fees recoverable for medico-legal services are set out in Schedule 2. These are based on the Schedule of Suggested Fees for Medical xaminations and Reports which is determined by the Law society of NSW and the AMA. There is an increase in medico-legal fees to reflect current market rates. For example, a medico-legal report obtained from a specialist who has not previously treated the claimant and requires an examination has increased from $720 to $1,200. There is also an incentive for parties to obtain joint medico-legal reports by providing a higher recoverable fee (up to $1,600) in an attempt to reduce appointments for an injured claimant.
A further amendment contained within the Regulations is the inclusion of Clause 10(3) which states that the costs of obtaining an initial treating medical report cannot be claimed by an injured claimant’s practitioner if the insurer has already obtained a report and provided a copy to them. If, however, a request has been put in writing for a copy of the report, and the insurer has failed to provide same within a reasonable time, the cost of a second report can be claimed. This restriction does not extend to updated treating reports subsequent to the initial report.
Investigation Reports and Expert Witnesses
Clause 11 of the Regulations maintains the restriction on claiming costs related to expert witnesses and reports.
There is a presumption that only one medical expert in any specialty and two experts of any other kind can be included in an assessment or award of damages.
This is the executive summary from this, the first document of its type I have seen (click here to see the complete document). You can see why all governments put obstacles in the way of claimants, with specific wording eg the specific injury rather than a specific injury (Queensland and South Australia), different thresholds for psychiatric as opposed to physical injury (all states) and exclusions, in South Australia no compensation for non economic loss. Note that general clerks, police officers and school teachers accounted for the majority of ‘work pressure’ claims. i have also included sub-categories of ‘work stress’ for your information.
The mechanism of Mental stress is assigned to claims where an employee has experienced an injury or disease because of mental stress in the course of their employment. Mental stress includes sub-categories distinguished by the nature of the actions, exposures and events that might lead to disorders as specified. The sub categories are:
Concerns are still being expressed about this bill. The most recent from the Law Council of Australia in May 2015. The Council had a number of specific concerns to do with various matters. The matters most relevant to us are:
and
The Wrongs (Part VBA) Claims Regulations 2015 prescribe forms and other matters for the purpose of Part VBA and came into operation on 9 May 2015 and revoked the Wrongs (Part VBA Claims) Regulations 2005. The changes do not appear significant in essence eg psychiatric injury must not have arisen from physical injury, but in relation to certificates of assessment of degrees of impairment under sections 28LN and 28LNA of the Act, the 2015 Regulations prescribe Forms 1 and 2 of Schedule 1 . After examining the claimant, you must certify:
The 2015 Regulations are said to introduce the criteria that in relation to the degree of permanent impairment resulting from a psychiatric injury and symptoms the approved medical practitioner must certify that the psychiatric injury has not arisen as a consequence of, or secondary to, a physical injury. Any secondary psychiatric injury must be disregarded for the purposes of the Certificate of Assessment. I thought we were already doing that
The 2015 Regulations also prescribe Form 3 in Schedule 1 as the correct form to be used for a request to waive assessment of impairment; and Form 4 in Schedule 1 as the correct form to be used for providing the prescribed information. There were previously no forms provided in the 2005 Regulations. This is of little interest to us.
The 2015 Regulations add the following prescribed information for the purposes of section 28LZA of the Act to what was previously prescribed in the 2005 Regulations:
The 2015 Regulations also prescribe Form 5 in Schedule 1 for the correct form to be used for a Notice of Referral of Medical Question to Medical Panel. There was no such form provided in the 2005 Regulations. The medical question in Form 5 is to be stated as follows:
does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level
As we use the median method to find the class that most reflects a centralising tendency, similarly we can use the Severity rating in the same way. This method has no official recognition. If you use it don’t record it on any template. Rather than just using the severity rating for the median class, use it for each class.
For example
Intelligence 1 L
Thinking 2 M
Perception 2 L
Judgment 2 M
Mood 3 L
Behaviour 2 H
Determine the median class, here Class 2 (the middle number).
Then determine the median severity of all the classes in the median class. .For severity ranges in classes outside the Median Class, the rule is to adjust ratings in any class below the Median Class to the Low range in the Median Class and for any ratings in classes higher than the Median Class to the High range in the Median Class.
! L 2 M 2 L 2 M 3 L 2 H becomes L M L M H H
In order = L L M M H H, the median severity in Class 2 is M
Percentages for Range of Severity
| 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% |
The WPI impairment is then between 14-16%.
If there is no clear median eg L L L M M H where the 2 middle letters are L and M, then the WPI is a percentage between these 2 ranges, in the example above if the severity ratings in order were L L M H H H, the final WPI is between the range for medium and the range for high, I,e, 16-18%. The final figure is for you to decide.
The South Australian government has chosen to use the GEPIC both for motor accident claims and for workers compensation claims. This should make life simple however legislation is not that easy. The changes to the Civil Liability Act have incorporated the system called Injury Scale Values from Queensland (apparently originally from the UK) that is a means of converting impairment into what I would regard as disability. See the Regulations. It is up to the medicos to determine impairment and then on the basis of their assessment together with a variety of other factors a person is given an ISV number that determines whether or not they gain access to a variety of other benefits including economic loss, noneconomic loss, so-called loss of consortium and access to other services. This has meant that the use of the GEPIC changes if one is assessing a South Australian ReturntoWork claim as opposed to a South Australian MAC claim.
What does this mean in practice?
For a South Australian ReturntoWork claim the usual procedure, as with any method of psychiatric impairment is followed. That is, one determines the whole person psychiatric impairment and then eliminates impairment unrelated to the work injury that is either pre-existing or has occurred since the work injury and also eliminate impairment caused by “Consequential Mental Harm” that means impairment secondary or consequential to physical injury, one is left with a percentage figure due to Pure Mental Harm, in other words impairment that is not secondary or consequential to physical injury. This is all fairly straightforward.
Because of the nature of the legislation with the Motor Accident Corporation those apportionments have to be done before you actually get to work out the level of impairment. In other words you must strip out impairment unrelated to the accident, impairment due to “Consequential Mental Harm leaving you with symptoms as a result of “Pure Mental Harm” such as from post traumatic stress disorder. You then determine the class of impairment for each of the six mental functions, only taking into account those symptoms arising from Pure Mental Harm. The median class is then regarded as the GEPIC rating. The GEPIC rating is then used to determine the ISV Item number ranging from, at the lowest 13 to, at the highest, 10. Each item number has a range of numbers within it but it is not for the psychiatrist to determine that.
I have now run two training sessions with regard to the South Australian ReturntoWork method and one with regard to the Motor Accident Impairment Assessment Scheme. It is interesting that in all three sessions using cases in groups there has been considerable consensus. Impairments assessments will commence on 1 July 2015 so it will be interesting to see what transpires.
I had an interesting discussion with a member of the Medical Board expressing my concern about board procedures, in particular review visits. He mentioned that this was a real dilemma and there was some uncertainty amongst members of the Medical Board about how best to proceed with what is clearly a very important issue. The issue is highlighted by a paper on the website entitled:
Prevalence and characteristics of complaint-prone doctors in private practice in Victoria: Marie M Bismark, Matthew J Spittal and David M Studdert MJA 2011; 195: 25–2
Among doctors in private practice in Victoria, 20.5% had at least one complaint over the decade (to the Victorian Health Services Commissioner). Among doctors who were the subject of a complaint, 4.5 had four or more complaints, and this group accounted for 17.6% of all complaints. Surgeons and psychiatrists had higher odds of being in the complaint-prone group than general practitioners. Doctors trained overseas had lower odds of being complaint-prone than those trained in Australia.
The Medical Board has extensive data about a small group of doctors, possibly less than 5% who are subject to multiple notifications. The problem with many of these notifications is that they are difficult to establish. The concern of the Medical Board is the frequency of similar complaints regarding the same doctor. The question is what can be done in the interests of the public and to some extent the interests of the profession. Recently developed has been here review visits these are clearly problematical, the question is what else can be done? I began to see APHRA in a more positive light.
There will be significant changes to Comcare if this act is passed. The matters of major relevance to forensic psychiatrists include:
On 25 March 2015, the Minister for Employment, Senator the Hon. Eric Abetz, introduced legislation into Parliament to amend the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The SRC Act underpins the operation of the Comcare scheme.
The proposed changes in the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 aim to:
The Minister’s second reading speech (amended and highlighted when required).
The minister focused on the usual motherhood issues
1. Ensuring a stronger focus on rehabilitation and return to work
The relevant information included the following:
A large body of evidence based research has established that many health problems can benefit from work based rehabilitation and an earlier return to work. The compensation payment system has been restructured to provide targeted financial incentives to return to some form of work as soon as safely possible.
Systemic incentives to remain on workers compensation for extended periods will be removed by providing for more graduated reductions in income replacement payments and reducing compensation payable where an injured employee refuses employment while having a capacity to earn in suitable employment.
2.Targeted support for injured employees
There will be targeted support for injured employees. To reduce the financial stress of illness and injury, the scheme will now provide for provisional medical payments of up to $5,000 before a claim is determined. The employer will have immediate rehabilitation responsibilities. Employees will no longer be required to utilise accrued leave before receiving these payments.
Professional, monitored, post-injury care will be provided to employees for the first three years of their injury, with uncapped, long-term or life-long care available to the catastrophically injured after this time.
Seriously injured workers will have the maximum lump sum payment amount increased from $242,000 to $350,000.
For those with less serious injuries, these payments will be more accurately scaled to allow for higher payments for those who need more support?
Time frames will be introduced for determining claims and resolving disputed claims, as well as improved information-gathering powers. Employers will also be required to lodge claims more quickly, and within specified timeframes, once they are notified of a claim.
To ensure that there are no gaps or inequities in the payment of entitlements to workers nearing pension age, eligibility for income replacement will be linked to the national age pension age and the five per cent reduction in compensation payments for employees accessing superannuation benefits will be removed.
The changes mentioned below may well have a significant effect on those who Comcare claims.
3. Scheme integrity and viability
The bill will ensure that system deals only with employment-related injury and disease as was the original intent of the legislation. This intention has been watered down by judicial interpretations leading to increased premiums and pressures on the viability of the scheme.
Amendments to the act will distinguish more clearly between work and non-work related injuries and limit the payment of compensation only to employees with work injuries. There will need to be established a clear causal connection with work before compensation is payable.
The amendments will also clarify the matters to be taken into consideration for psychological claims and introduce new thresholds for specified pre-existing conditions such as heart, brain and spinal injuries to ensure that the scheme is accepting liability for conditions that are work-related.
As the workers’ compensation system was never designed to prevent employers taking reasonable action to manage their employees, the proposed amendments will clarify the range of reasonable management actions that, when reasonably undertaken, should not give rise to compensation claims.
In order to address rapidly escalating scheme costs and ensure the long-term viability of the scheme, Comcare will establish schedules that specify the amounts payable for medical treatment and medical reports, and legal services obtained by claimants. Currently, there are no limits on the amounts that Comcare now pays for these items.
Schedules will not only reduce lengthy dispute time frames but provide greater certainty and transparency for service providers and claimants (and reduce payments to medical providers and for medical reports).
The integrity of the scheme will be underpinned by a three-stage sanctions regime in which employees who do not meet their medical treatment and rehabilitation obligations will have their compensation rights suspended or cancelled.
I have already written a post about problems experienced by psychiatrists dealing with APHRA ( see 5 September 2013). More recently, a colleague in Melbourne, an independent medical examiner contacted the forensic section because of concerns over actions taken by APHRA via the Medical Practitioners Board of Victoria. There had been three complaints from workers to APHRA with regard to the IME’s matter and demeanour. Each had been found to be “lacking and substance”. Following a fourth complaint in late 2014, that has not yet been resolved, the IME was told ‘AHPRA have requested that I undergo a Performance Assessment, which involves 2 peer colleagues sitting in with me during a medicolegal assessment.’
Understandably the IME was concerned that despite three previous complaints having been thrown out, the fourth complaint, that had not been resolved, lead to this action. The IME contacted the forensic section of the College.
The Victorian forensic committee, including myself, did some research including looking at the legislation.
This legislation is interesting because it is not within the powers of the Commonwealth to regulate health care providers so all the states have enacted legislation initiated by Queensland that establishes the structure and function of APHRA and the various regulatory boards including overarching boards for Australia and boards for each state and territory.
In Victoria we have adopted the HEALTH PRACTITIONER REGULATION NATIONAL LAW
4 Application of Health Practitioner Regulation National Law
The Health Practitioner Regulation National Law, as in force from time to time, set out in the
Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland—
(a) applies as a law of Victoria; and
(b) as so applying may be referred to as the Health Practitioner Regulation National Law
(Victoria); and
(c) so applies as if it were part of this Act.
The most interesting sections are the following:
Part two Section 7
Exclusion of legislation of this jurisdiction
The following Acts of this jurisdiction do not apply to the Health Practitioner Regulation
National Law (Victoria) or to the instruments made under that Law—
(a) the Audit Act 1994;
(b) the Financial Management Act 1994;
(c) the Freedom of Information Act 1982;
(d) the Health Records Act 2001;
(e) the Information Privacy Act 2000;
(f) the Interpretation of Legislation Act 1984;
(g) the Ombudsman Act 1973;
(h) the Public Administration Act 2004;
(i) the Public Records Act 1973;
(j) the Subordinate Legislation Act 1994.
One cannot use these Acts to obtain any information about the activities of APHRA and nor does there appear to be any avenue of appeal!
Section 151 (2) was the section that was used with regard to the Victorian IME. In other words if they find, as they did, that three complaints lacked in substance nevertheless they can use those dismissed complaints as a reason to take further action!
151 When National Board may decide to take no further
action
(1) A National Board may decide to take no further action in relation to a notification if—
(a) the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or
(b) given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification; or
(c) the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or
(d) the subject matter of the notification has already been dealt with adequately by the Board; or
(e) the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.
(2) A decision by a National Board to decide to take no further action in relation to a notification does not prevent a National Board or adjudication body taking the notification into consideration at a
later time as part of a pattern of conduct or practice by the health practitioner.
(3) If a National Board decides to take no further action in relation to a notification it must give written notice of the decision to the notifier.
(4) A notice under subsection (3) must state—
(a) that the National Board has decided to take no further action in relation to the notification; and
(b) the reason the Board has decided to take no further action.
Sections 170 and 171 give APHRA the power to require a performance assessment. You will notice that there are two types of assessment, and health assessment and a performance assessment.
170 Requirement for performance assessment
A National Board may require a registered health practitioner to undergo a performance assessment if the Board reasonably believes, because of a notification or for any other reason, that the way the practitioner practises the profession is or may be unsatisfactory.
171 Appointment of assessor to carry out assessment
(1) If the National Board requires a registered health practitioner or student to undergo an assessment, the National Agency must appoint an assessor chosen by the Board to carry out the assessment.
(2) The assessor must be—
(a) for a health assessment, a medical practitioner or psychologist who is not a member of the National Board; or
(b) for a performance assessment, a registered health practitioner who is a member of the health profession for which the National Board is established but is not a member of the Board.
(3) The assessor may ask another health practitioner to assist the assessor in carrying out the assessment of the registered health practitioner or student.
(4) The assessor’s fee for carrying out the assessment is to be paid out of the National Board’s budget.
You will notice that the person or persons doing a performance assessment must be, in this situation, a medical practitioner, not a psychiatrist and certainly not the person experienced in doing independent medical examinations when we know that the very process of doing an IME leads to complaints especially when claimants are unhappy with the opinion..
So we have a situation where complaints have been made about an IME that have been dismissed. Following a further complaint of a similar type the IME has been required to have a performance assessment with no requirement that this be done by a peer.
You will notice that the quote in the letter from the IME refers to “two peer colleagues” doing the assessment, I assumed that a ‘peer colleague’ would be, at the least, a psychiatrist and ideally another IME. This is not going to happen.
The IME has received legal advice and has been told to proceed with the assessment! A further question is whether the assessment will only be with WorkCover claimants or with other clinical patients, inasmuch as the complaints were only to do with IME work I would expect that the assessment would be with this group, but who knows?
Information received from the College has been that APHRA has the power to order a performance assessment. The College has also raised concerns about the difficulties of the notification system, specifically around medico legal reporting, and the implications and stress this causes practitioners, especially in civil and family court matters. This continues to remain on the agenda for the College when it meets with AHPRA and Medical Board representatives.
The College has also informed us that: AHPRA has a pool or predetermined assessors which they generally contact directly except for when there is a direct need.
What has been our advice?
We have told the IME to have a colleague sitting in on the assessment. We have also recommended that the IME have that colleague present at an earlier session to pick up any possible problems.
We have been astounded by the powers of APHRA especially in view of the level of morbidity in medical practitioners about whom complaints have been made. I have included two relevant articles,
I have a certain sympathy for APHRA, it is a difficult task but those of us who do independent medical examinations are very much in the firing line. Especially because complainants have ready access to a number of blogs ,for example ‘aworkcovervictimsdiary‘ and the injured workers support network that feed that feed into workers’ hostility towards the WorkCover system and those who work in it. Ironically, in Victoria, I am not aware of any complaints about IMEs with regard to transport accidents. I can find only one site complaining about the Victorian Transport Accident Commission.
I have written in other posts about changes to the Victorian TAC including the introduction of Joint Medical Examiners. Joint Medical Examiners are Independent Medical Examiners who see claimants and prepare reports for both the TAC and plaintiff’s solicitors. Since the JME process has been implemented there have been a number of disputes including the fee schedule, the lack of coordination between the two parties leading to excessive documentation and questions and the distaste many IMEs have for the requirement that they must complete TAC documentation and receive TAC accreditation before they can participate in the process. The other issue, of course, is the potential for the TAC to veto some examiners.
There have been a number of changes in position by the TAC; the initial fee schedule was $1368.79 (including GST) with an extra payment of $150 including GST in the transition period that was to expire on 1 January 2015. Subsequently since the legislation refers only to paying “a reasonable fee” the TAC agreed that JMEs could charge their usual fee until the end of the transition period. There was then consultation with a number of JMEs where complaints were made about several issues. This led to the establishment of the TAC/JME Reference Group, the transition period was extended to 1 April 2015 and rather than a single fee, a fee range was to be implemented. ($1231 -$1800 + GST).
The TAC/JME Reference Group has now met three times, it includes JMEs and representatives of the TAC and the Australian Lawyers Alliance. it has been agreed that the fee within the range above will be determined by the JME and will be paid automatically subject to the usual periodic reviews. There will be some leeway at the upper end of that range so that a fee that may be $300 or thereabouts above the top fee in the scheduled range will usually be paid automatically. JMEs will be provided with information about issues that are regarded as leading to complexity and the need for additional payments. This information will vary according to the different craft groups involved . There will be further meetings to explore cutting back on documentation, reducing document duplication and similarly cutting back on the number of questions asked.
Most of us have been surprised by the conciliatory stance taken by the TAC and are still crossing our fingers.
culminating in
I came across this paper recently and thought it might be of interest to you. It is a little out of date but the general information remains applicable. The last 2 tables are especially interesting with an overview of thresholds and an overview of methods.
Role of Impairment Assessment in Australian & NZ Injury Compensation Schemes
Andrew Fronsko and David Swift
ISCRR 1st Australian Compensation Health Research Forum
October 2011
The recent guideline # 19 Determination of a Recognised Psychiatric Diagnosis noted that the The Motor Accidents Authority Permanent Impairment Guidelines – Guidelines for the assessment of permanent impairment stated “The impairment must be attributable to a recognised psychiatric diagnosis in accordance with the Diagnostic Statistics Manual of Mental Disorders (4th Edition) [DSM IV], Internal Classification of Diseases (10th Edition) [ICD 10] or a substantial body of peer review research literature
1 The impairment evaluation report must specify the diagnostic criteria upon which the diagnosis is based.”
In May 2013 the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM 5) was released and in 2015 the Eleventh Edition of the International Classification of Diseases (ICD) is due to be released.
The Guideline stated that with the publication of the DSM 5 it may be unclear for Psychiatric Medical Assessors whether or not they can make a psychiatric diagnosis in accordance with DSM 5.
Preferred Approach
The DSM 5 may be considered by Psychiatric Medical Assessors as “a substantial body of peer review research literature.”(clause 7.13 MAA Guidelines) and apparently may be used together with DSM IV TR and ICD 10.
The Guidelines go on to state that any diagnosis based on DSM 5 must be clearly referenced and “must specify the diagnostic criteria upon which the diagnosis is based”,
However Psychiatric Medical Assessors were reminded that somatoform disorders, (Somatic Symptom and Related Disorders inDSM 5) are not assessed under the MAA Guidelines.
The guideline stated that the preferred interpretation is suggested to promote consistency of assessment and to assist the parties to understand the methodology behind the diagnosis of psychiatric injuries and associated impairment.
According to The Age newspaper of 27 October 2014 The Transport Accident Commission has saved $142 million after the recent amendments in the Transport Accident Amendment Act that have defined severe long-term mental illness. I have written about this previously. The new definition requires people to prove that they have had significant symptoms for at least three years after a car accident despite treatment if they are to be eligible for common-law compensation. at the time we protested vigorously stating that few people with what we regarded as severe mental illness would meet the criteria. According to the newspaper the commission has not processed any claim for severe mental injury compensation under the new criteria since it was introduced in October 2013.
A letter obtained by Fairfax Media reveals that the Transport Accident Commission lobbied the government to 2 years for the change because it believed the old threshold for mental injury compensation was not financially sustainable. The commission’s chief executive, Janet Dore, wrote to former board members last month about its progress in the final year of the six year review of its finances. She said there had been a $142 million saving to the TAC scheme-this financial year, taking its total savings to $252 million, with no “hot spots” identified by actuaries for the first time in her tenure. “The cumulative result reflects significant erosion of the metal injury threshold, which was threatening long-term financial sustainability. It required two years of work to achieve legislative change to manage this issue,” she said.
Janet Dore confirmed she had written a letter saying “the TAC has a responsibility to ensure that the scheme remained accessible and financially viable into the future….
The commission made a $499 million profit this financial year down from its $973 million profit last year. When the law was changed the Victorian State government said it was not seeking to restrict access to compensation, but to ensure that compensation claims for mental injury were made “consistently”!
The government was talking bullshit, it is obvious that this was done to save money despite the TAC making a profit last year of $500 million. Dr Nigel Strauss was quoted as saying that most seriously ill psychiatric patients would miss out on compensation under the new criteria. John Voyage, head of Maurice Blackburn’s TAC Department estimated dozens of people were no longer eligible for mental injury compensation this year.
As I have already written, the fee schedule as from 1 July 2014 is increasingly irrelevent as JMEs have continued to charge their usual fee. We were told, in no uncertain manner that as from 1 January 2015 the fee schedule would definitely apply. Now the TAC has extended the transition period to 31 March 2015! The fee schedule will ( some scepticism here) be from $1231 – $1800 + GST), with complexity criteria to guide examiners billing within this range. There will be exceptions, examiners can contact the TAC to discuss circumstances where the reasonable cost for the service may be above the fee range when the transition period ends.
56—Lump sum payments—economic loss
(1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for loss of future earning capacity by way of a lump sum.
(2) An entitlement does not arise under this section if the worker’s degree of whole person impairment from physical injury is less than 5%.
(3) An entitlement does not arise under this section in relation to—
(a) a psychiatric injury or consequential mental harm
58—Lump sum payments—non-economic loss
(1) Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum.
(2) An entitlement does not arise under this section if the worker’s degree of whole person impairment from physical injury is less than 5%.
(3) An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm.
On 3 September 2014 the NSW Government introduced a number of changes to workers compensation entitlements. These changes are said to better support injured workers to return to work, with the commencement of the Workers Compensation Amendment (Existing Claims) Regulation 2014. These changes do not apply to workers injured after 1 October 2012, the New South Wales Workers Compensation Legislation Amendment Act 2012 then applies.
These regulations, in effect restore the situation for workers injured prior to 1 October 2012 her situation had changed following the the 2012 Amendment act.
Those eligible workers will now receive weekly payments for a maximum of 12 months after reaching the retiring age and if they have an impairment of greater than 20% they have continuing access for medical, hospital rehabilitation expenses until retiring age and for certain expenses they have continuing access regardless of their percentage impairment.
Key reforms
The recent changes only apply to those workers who made a claim for compensation before 1 October 2012.The changes made in respect of these entitlements allow:
a) is directly consequential on earlier surgery
b) affects the same part of the body affected by earlier surgery
c) is approved by the insurer within two years of approval of the earlier surgery
d) is reasonably necessary treatment as a result of the injury and is pre-approved by the insurer.
Insurers have been instructed to identify relevant claims and contact workers who may have an entitlement that is affected by these changes.
There is a Questions and Answers fact sheet and a Workers Compensation Changes fact sheet. These fact sheets and general information about the regulation are available on the WorkCover website at www.workcover.nsw.gov.au.
There are obvious advantages to having a uniform WorkCover system, interstate companies not having to deal with nine different systems(think about it, Western Australia, South Australia, Northern Territory, Queensland, New South Wales, ACT, Victoria, Tasmania and Comcare!), unions with workers in different states, the amount of bureaucracy, duplication and cost shifting is mind-boggling. It is also a nightmare for IMEs assessing people who have been injured in different jurisdictions.. Like much that we have I often think it would be best if we scrapped the whole thing and started afresh but of course that’s not going to happen.The question of a uniform WorkCover system raises further questions. Why should there be a uniform system for people who are injured at work but totally different system so people injured in transport accidents and loosely no system for people who are injured in other situations. Maybe we should go the New Zealand route and have a uniform accident compensation system for all accidents. One of the advantages of a non- federal system. The political and financial implications however are mind-boggling. Nevertheless the various WorkCover authority’s in each state and territory do have an organisation looking at doing precisely this..
I think there are 4 major problems with a uniform system.
1.The situation is complicated by a number of factors. Most states have moved to AMA 5 except Victoria and the Northern Territory. There is general satisfaction with AMA 4 in Victoria and a large amount of money has been spent in training IMEs. The feedback I have received suggest there will be no change in the near future.
2.The second point is that WorkCover schemes as opposed to motor accident schemes, have powerful constituencies especially unions and employers but also lawyers. This adds to the general unwillingness for either side to sponsor change that may disadvantage their clients.
3. The third issue is a specific issue with regard to psychiatry There are three systems of measuring psychiatric impairment that are incompatible with each other. Comcare uses a rudimentary table, most states use the Psychiatric Impairment Rating Scale about which I’ve written scathingly and Victoria uses the GEPIC (see article). Does this matter? Well, in fact it has great significance because the various thresholds for claiming permanent injury are different according to the method of psychiatric impairment used. For example in New South Wales it is 15% and in Victoria it is 30%. Bearing in mind that the psychiatric impairment has to be impairment that does not result from physical injury. AMA 6, from a psychiatric point of view is a disaster although it is used in the Northern Territory for motor accident claims.
One of the reasons we don’t want change in Victoria is that the GEPIC is used for WorkCover claims, transport accident claims and civil liability claims. This makes impairment assessment much easier and more understandable, it would bring a system into disrepute if a person had both WorkCover claim and a transport accident claim and the impairment assessment produced startling different figures.
There is an answer although not for the foreseeable future. The answer is that the authors of the chapter on mental and behavioural disorders in the American Medical Association Guide produce something worthwhile instead of what has been produced since AMA 2.
4.The unwillingness of individual states and to give up their own power and potential source of income to embrace a national model
I have had an interesting correspondence with the Victorian Transport Accident Commission. It has been a salutary lesson in teasing out the meanings of bureaucratic jargon as you will see. I have posted all correspondence in the Resources Section. The background to this were the amendments that were made to the Victorian Transport Accident Act in 2013. One of the amendments (when translated) was:
The commission will only pay for medicolegal reports if the report is requested jointly by the commission and the plaintiff solicitor and the report is provided to both parties.
This was to take effect from 1 July 2014. There was a form of consultation with regard to an appropriate fee schedule and we were arbitrarily informed that the fee set would be 30% above the usual TAC fee with no extras. I and others complained about this as it was significantly lower than our usual fee. I received several cryptic letters from the TAC that I interpreted, apparently correctly. The first was agreeing to pay additional costs for particular cases where there was some complexity or excessive reading and so forth and subsequently the second appeared to agree to me charging my usual fee.
I have since done so. The message is keep hammering away at these authorities, they have no idea about the type of work we do, the complexity of the work, the responsibility we have and we seem to be regarded as a necessary evil.
In the process of doing some research for the training seminar on 31 May and 1 June 2014 I revisited some of the State motor accident schemes. The diversity of schemes is extraordinary.
In broad terms there are two different types of schemes, Compulsory Third Party Insurance Schemes that require fault to be determined and No Fault Schemes, however over the years hybrid schemes have developed.
The Compulsory Third-Party Schemes include:
New South Wales – (however small payment is made to those who are at fault and there is also a Lifetime Care and Support Authority for accident victims with specific injuries: spinal injury, moderate to severe brain injury, multiple amputations, major burns and blindness. This scheme is no fault.
South Australia – however recent legislation has partially converted this into a no fault scheme so this is a real hybrid. There is also a Lifetime Support Scheme. The LSS, likely New South Wales Lifetime Care and Support Scheme will include people who suffer very serious spinal or brain injury, amputations, burns or blindness, regardless of who was at fault for the accident. The care will be provided from the time of the accident.
No Fault Schemes include:
Tasmania This scheme is No Fault but is also a hybrid with the opportunity to make personal injury claims if fault can be shown.
Victoria – this is also a hybrid scheme that is mainly No Fault but also allows for personal injury claims when fault becomes an issue.
Fortunately, most of us only work in one jurisdiction but even then we are often unaware of the complexities. This post gives you an opportunity to look at the situation in your state and, if need be compare that with the situation elsewhere.