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
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.
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
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.
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.
From me to WorkSafe
Thursday 24 May 9.30am
Thank you for this interesting document (see previous post).
To avoid misgendering, the use of gender-neutral pronouns such as they, them or their may be more appropriate in some circumstances. Gender-neutral pronouns, such as ‘zie’ and ‘hir’, may also be used. Most importantly, pronouns used should align with those requested by the person and should be used consistently. If you are unsure, respectfully ask the person what their preferred pronoun is and ensure that you use this pronoun when communicating.
There are some issues that require clarification. Could you provide the context in which these terms would be used. Could you also indicate the difference between ‘zie’ and ‘hir’, when they should be used and how these words are pronounced. This information would make it easier for IMEs when dealing with people who do not regard themselves as fitting into the system of binary genders.
WorkSafe response
Thursday 24 May 10.00 am
Thanks for contacting the Independent Medical Examiners (IME) Team.
Your enquiry is important to us and we will be in touch within 1 business day.
From me to WorkSafe
Monday 28 May at 5.30pm
I have not received a response to my email sent on Thursday, can I expect to receive a response soon?
WorkSafe response
Tuesday 29 May
May We apologise for the delay in getting back to you, we have referred your questions to a different business unit for review as this document was created by a different area of WorkSafe. We hope to have an answer for you shortly.
On it goes
WorkSafe
Wednesday 30 May at 3.45pm
Re: Clarification of article within IME Insight May 2018
To clarify further, the standard number of questions you should receive within the referral letter is 12. The Agent may request additional questions however they should not exceed a total number of 15 (questions).
From me to WorkSafe
Wednesday 30 May 4.46pm
You advise that agents should ask no more than 15 questions. How does this reconcile with the New mental Injury Eligibility Questions? There are 13 main questions and a possible 25 subsidiary questions.
WorkSafe response
Wednesday 30 may 5.00pm
Thanks for contacting the Independent Medical Examiners (IME) Team.
Your enquiry is important to us and we will be in touch within 1 business day.
Friday 1 June 2018
No response to either query!
In its most recent communication WorkSafe Victoria has advised IMEs about appropriate use of “gendered” language. I make no commentary other than to note the threat if you do not comply. Who would be an IME?.
The full document reads as follows.
Gendered language
WorkSafe has developed a guide for IMEs about the appropriate use of gendered language.
Binary male/female language expressed through gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect our community diversity.
The Guide
This document provides Independent Medical Examiners (IMEs) with a guide to the appropriate use of gendered language.
Binary male/female language, expressed through the use of gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect the diversity of our community.
The Victorian Government’s Inclusive Language Guide defines misgendering as:
Using language to refer to a person that is not aligned with how that person identifies their own gender or body. Most but not all intersex and trans people who identify as male prefer to be referred to as ‘he’. Most but not all intersex and trans people who identify as female prefer to be referred to as ‘she’. Some people prefer to be described with their first name only or a non-binary pronoun such as ‘they’ rather than a gendered pronoun.
To avoid misgendering, the use of gender-neutral pronouns such as they, them or their may be more appropriate in some circumstances. Gender-neutral pronouns, such as ‘zie’ and ‘hir’, may also be used. Most importantly, pronouns used should align with those requested by the person and should be used consistently. If you are unsure, respectfully ask the person what their preferred pronoun is and ensure that you use this pronoun when communicating.
Misgendering of a person may amount to a breach of the IME Service Standards. Please refer to ‘Conduct during examination’ in the IME Service Standards for more information.
November 2017
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.
During 2017 WorkSafe Victoria invited the Victorian committee of the College Faculty of Forensic Psychiatry to meet and discuss a number of issues including who should do IME work, documentation, questions asked, timing, security, and even fees. We had two meetings, I posted my thoughts at that time, they proved to be prescient! We were to have another meeting in July that did not proceed and we heard nothing further.
All IMEs then received a document dated 31 January, 2018 that included several attachments.
Dear IMEs,
At WorkSafe we are looking for better ways to work with our IME’s.
It is important to us that you are kept up to date with relevant and useful information to support you in your roles as IME’s with WorkSafe.
Strategic Communications
Firstly, we are trying a different approach to the way that we will communicate with you to keep you informed about important updates through our IME Insight.
In this issue:
We want to hear from you
Have ideas or feedback on how we can support you in your roles or to let us know if this type of update is useful, please contact independent_medical_examiner@worksafe.vic.gov.au
(See attached file: IME newsletter – issues one – jan 18.pdf)(See attached file: New Mental Injury IME Question Effective 18 December 2017.docx)(See attached file: New Mental Injury Questions A Guide for Practitioners V1 Dec 2017.docx)(See attached file: New-IME-Mental-Injury-Questions-IME-Coms V3 2018 (002).png)
Kind Regards
WorkSafe IME Provider Engagement Team
One attachment was the newsletter called ‘IME Insight’ dated 1 January 2018, a one-page document stating that there were new mental Mental injury questions
Another was “the New Mental Injury IME Questions” of which there are eight questions but so many sub- questions that in all there are a total 36 questions. There is also a guide to these questions, These questions in this guide were developed by the following:
Karen Chapman | Project Co-ordinator
Chris Lyons | Provider and Quality Co-ordinator
Dielle Felman | Consultant Psychiatrist MBBS (Hons), MPM, FRANZCP
Dr Felman was placed in a difficult position. She was asked to give advice about these questions but had no involvement with the Forensic faculty committee and was essentially speaking for herself.
The chair of the forensic faculty Victorian committee then contacted Lisa Boyd,who had been running the process and was told “We are looking for a very broad-based approach to liaising with psychiatry”; having the Forensic Faculty as the point of liaison does not seem to fit with this!
So much for consultation – Not happy Worksafe. It is consistent with my experiences with WorkSafe extending over 25 years. I have been a member of the AMA VWA/TAC committee during much of this time and it is the same old story, bullshit consultation (to tick the box) and on they go doing what they intended doing all along. I have decided to not re-apply to be an IME.
Wrongs act claims 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
(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.
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.
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.
If you have any questions regarding this document, please contact Simon Hynes, Program Lead, Provider Regulation and Support on 8238 5757 or email providers@rtwsa.com before the closing date so these can be considered within the consultation timeframe.
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.
ReturnToWorkSA with the Australian Medical Association (AMA) through a Memorandum of Understanding has agreed to parity with published AMA rates for General Practitioner Attendance fees up to but not exceeding an annual 5% increase.
The following table illustrates the Average Private Charge (APC) changes, the percentage differences for APC and Medicare charges and the proposed changes for the ReturntoWorkSA medical fees:
| APC change for 2017-18 | RTWSA vs
APC for 2017-18 |
RTWSA vs
Medicare Charge for 2017-18 |
Proposed RTWSA Change | |
| General Practitioner Attendance fees (Within Schedule 1A) | -0.2% | 41.1% higher | 96.5% higher | 1.8% increase (AMA rate equivalent) |
| Remaining Schedule 1A and 1B fees | -0.2% | 41.1% higher | 96.5% higher | No increase |
Given there has not been an increase in average private charges for medical fees during 2017-18, there is no proposed increase to medical fees (excluding General Practitioner Attendances) for 2018-19.
To enable fees to take effect from 1st July 2018, ReturnToWorkSA will:
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 providers@rtwsa.com by close of business on 7th of March 2018.
From time to time all of us have been required to review a claimant and prepare a further report. This often leads to a dilemma, how much to include in this report from the original report? Some assessors make no mention of the original report or their initial opinion. Others virtually reiterate their initial report.
Confounding the situation is the provision of other reports, some predating the initial report. How to deal with those?
My general view is that my report should tell a story. Accordingly I weave into my report information provided from other reports according to their chronology. I find this far more readable than having a summary of other reports provided in one section after the examiner has written about the incident, treatment and current situation. I find it frustrating to have to read backwards and forwards relating other reports to the timeframe provided by the examiner.
When I have been cross-examined, having written a report and then a review report the usual way of dealing with the review report is that I am asked to pick up the story from when I last saw that person. So why don’t I simply carry on from where I left off.
On a number of occasions I found that a review report is the only report I receive and the type of report carrying on from the last interview I mentioned above gives no background and to that extent is not informative.
Accordingly I provide a brief account of the incident and its aftermath and of any pre-existing relevant matters. I deal with the other medical reports by interweaving them into this narrative.
One note of caution. I saw a man for a WorkCover claim who was a carpenter working for his father’s construction company. His father and older brother were directors of the company. The company failed and his father and brother abandoned it. He was left to pick up the pieces. He had no training in management but felt committed to doing what he could for the subcontractors for the company, many of whom were his friends. It was in that context that he became severely anxious and depressed and ceased work 3 months later.
I saw him initially and then six more times for review. Every time I saw him for review, my focus was on what had happened since I had last seen him. I failed to go back to the events surrounding his psychological collapse. When I was cross-examined the barrister took me to my description of the events surrounding his breakdown. I was surprised to realise how scanty was my description and embarrassed to realise that the two or three sentences I had written were largely taken from a psychological report written at about that time. I had checked with him and he had agreed that what she had written was correct. Nevertheless it was clearly inadequate and my failure to ask him further about this at the six subsequent visits left me with egg on my face.
As usual, when I have stuffed up like this, I go through 24 hours of managing my wounded ego and then focus on “how do I make sure this never happens again”. So when I see somebody for review I always make sure that my description of the initial event is accurate and if any further questions are in my mind I use the occasion to clarify these.
One last point, if the event for which I’m seeing the claimant occurred only 6 to 9 months previously or if the claimant is about to have surgery or to commence psychological or psychiatric treatment or attend a pain management program then I recommend that the claimant be sent back to see me after another 6- 12 months when the situation is likely to have stabilised.
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
Severity Rating Table in the GEPIC (p1569)
| Classes | 1 | 2 | 3 | 4 | 5 |
| Low | 0-1% | 10-12% | 25-30% | 55-60% | 75-80% |
| Medium | 2-3% | 14-16% | 35-40% | 65-70% | 85-90% |
| High | 4-5% | 18-20% | 45-50% | 70-75% | 95-100% |
For example:
1L, 2H, 2M, 2H, 3L, 3M – Median Class 2
Severity ratings adjusted for Class 2, below = L above = H
1L = L, 2H = H, 2M = M, 2H = H, 3L = H, 3M = H
In order LMHHHH – median severity = H
High severity in Class 2 18-20%
WPI is 20%
Worked Example
Determine Impairment and severity of the impairment within the median class.
GEPIC Table
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%
Every time I use the PIRS I am reminded of why I think it is so inadequate. I saw a young man yesterday who was removing an air-conditioning compressor for a boss who was paying him cash in hand. He had to cut the power cable to the unit. His boss told him the power had been turned off-not correct. This fellow was electrocuted and had severe burns to his right hand and wrist. He had weeks in hospital with about 20 operations including debridements and skin grafts and has been left with pain, weakness and ugly scarring of his right hand. He has had nightmares, flashbacks, fear of electricity and became significantly depressed. This was exacerbated by the refusal of his boss to acknowledge that he was working for him.
So I saw him three years later. In the meantime he had developed an ice and cannabis addiction, he had been imprisoned for housebreaking and thefts, his relationship had broken down and he had attempted suicide by gassing himself in his car. He had support and had been able to stop using ice and cut back his use of alcohol and cannabis. He had attempted to return to work on three occasions but had not been able to continue with two of the jobs because of problems with his right hand and because of his fear of working near machinery and using electrical equipment. When I saw him he was working part-time for a fish wholesaler although the cold was causing more hand pain and he remained uneasy about machinery and electrical equipment but he was determined to push himself.
He had a significant post traumatic stress disorder, a substance use disorder and a chronic adjustment disorder with depressed mood. This is where I get frustrated – his PIRS rating was 5% (in his state the issues of pure mental harm and consequential mental harm do not apply)! His grooming has improved, he has been encouraged to socialise more and has been trying to do so, he is still uneasy travelling to unknown areas, he still has some difficulties with concentration but was able to do a plant operator’s certificate and was working part-time. There is nowhere in the PIRS descriptors to Take account of his continuing drug use, his mood issues and his symptoms of traumatisation. You are unable to score these important matters. The PIRS deals with proxies of mental disorders rather than mental disorders themselves. The only pleasing feature is that we are not obliged to use the sixth edition – that is so much worse!
As you may know the Victorian ombudsman has raised questions about preferential use of IMEs by claims agents. The response of WorkSafe has been to centralise the bookings for psychiatric assessments. One of the issues has been that IMEs had been required to agree to block bookings although subsequently we have been told that this is not a requirement but those who have not agreed to block bookings have not received appointments. We have heard from WorkSafe that eReports have boasted that they have bulk bookings available. WorkSafe have denied this and have claimed that the ‘corporates i.e. eReports and others only provide offices and typing. IMEs who do work for eReports have told me that this organisation organises appointments, billing, rooms if required, typing and for those reasons is very convenient. I have also heard that the corporates have block bookings and fill them using different IMEs. The issue of course is that problems identified by the ombudsman with regard to claims agents appear to have been kicked further down the track as any sensible business model for one of these corporates, the bulk of whose work is for defendants, suggest that they would prefer to use some IMEs than others.
Watch this space. This matter is by no means over.
The CPD requirements for forensic psychiatrists have some difficulties as I’m sure you are aware, in particular the new 5-hour (Section 3) ‘Practice Development requirement’.
The Victorian Forensic Faculty Committee has been told following the CME Committee meeting in June that the following activities would meet the requirement:
Peer analysis of subset (5) of reports produced, using a structured tool such as the revised Worksafe Proforma, with view to revision and repeat of process each year
I have been perusing Judges’ comments about my reports, interesting and salutary reading. I encourage you to do a search for your own stuff. I have been distributing a patient questionnaire
over the last month. I have placed a copy of this in Publications.
I would be interested in any feedback
I have been reliably told that eReports were unhappy about my reference to them in a previous blog and were contemplating legal action!!
I singled out eReports because of the following letter some IMEs received from WorkSafe.
My blog was about the WorkSafe response to the ombudsman’s report and i wrote in part:
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week.
The letter from WorkSafe makes it clear that my comments were accurate and there was a quick negative response from WorkSafe.
So eReports, be fruitful and multiply off, as they say.
By the way, a colleague received notice of a cancellation of an appointment by WorkSafe the morning of the appointment
because the worker did not want to see him!
26 July 2017
Dear IME
It has come to the attention of the Victorian WorkCover Authority (WorkSafe Victoria) that eReports Pty Ltd (eReports)
has communicated with some Royal Australian & New Zealand College of Psychiatrists (RANZCP) members about its relationship with WorkSafe Victoria.
WorkSafe Victoria considers that many of the statements made by eReports in this communication are incorrect, and wish to make the following clarifications:
WorkSafe Victoria is currently undertaking a holistic review of its independent medical examiner (IME) model, driven by the recommendations
made in the recent report of the Victorian Ombudsman’s investigation into the management of complex workers compensation claims and WorkSafe oversight.
The focus of the review is on improving injured worker experience. To date, WorkSafe Victoria has made no commitment to increase fees, and
will not be reviewing fees until the conclusion of the review.
WorkSafe Victoria does not endorse the services of eReports. WorkSafe has made no agreement with eReports to use their online platform.
WorkSafe Victoria’s relationship is with IMEs, who may request WorkSafe make appointments with them via eReports. While eReports
facilitates appointments with individual IMEs, there is no agreement or relationship between WorkSafe Victoria and eReports.
WorkSafe Victoria does not require IMEs to engage with eReports for the purposes of providing IME services, but IMEs
are free to engage a medico-legal company if these arrangements best suit their practice.
In an effort to efficiently and effectively manage appointments with IMEs, WorkSafe Victoria has requested
some IME psychiatrists and psychologists commit to provide WorkSafe Victoria with a dedicated number of referrals.
This will enable WorkSafe Victoria to improve injured worker outcomes by minimising the wait time for injured workers to access an IME appointment.
WorkSafe Victoria relies on its own systems and processes in place to identify appropriately qualified psychiatrists to provide IME services.
eReports does not provide any recognised services to WorkSafe Victoria in relation to the identification of suitably qualified or capable specialists.
WorkSafe Victoria is not currently recruiting for new IMEs, as is stated on our website: https://www.worksafe.vic.gov.au/health-professionals/independent-medical-examiners.
eReports has no involvement or connection with WorkSafe Victoria’s IME recruitment processes, and any training programs offered by eReports are not relevant to or recognised by WorkSafe Victoria’s recruitment processes.
WorkSafe Victoria has also written directly to eReports to express our concerns that they have misrepresented the nature of their relationship with WorkSafe in this correspondence. If you have any questions or concerns in relation to this matter, please contact independent_medical_examiner@worksafe.vic.gov.au
Yours sincerely
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’:
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.
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:
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.
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.
All state and territory workers compensation schemes provide coverage for employee trips if they are travelling for work purposes, though only some provide coverage for journeys to and from the workplace.
In Tasmania, South Australia, Western Australia and Victoria an employer is generally not liable for an employee if they are injured on their way to or from work. In Victoria, workers who are injured on this journey are able to apply for compensation under a separate transport accident compensation scheme.
In NSW, the situation is a little more complicated. There is no compensation payable on a journey to or from work unless there is a “real and substantial connection between the employment and accident or incident out of which the personal injury arose”.
Basically this means employers will not be liable for when an employee gets injured on the way to work, unless:
In the Northern Territory and the ACT, employers generally are liable for trips to and from work. However, when a worker is in their car and still on their own property they cease to be covered by the scheme.
Liability for such journeys also applies in Queensland. There are, however, a number of exemptions. For example, a worker will not receive any workers compensation for injuries if they break road or criminal laws when the accident happened and this contravention led to the accident. Also, if the injury occurs too long before the employees’ work journey (and the employee was driving in the car at the time) or in a substantial geographical deviation from the journey, then an employer will not be liable.
Journey for ‘work purposes’
If a worker injures themselves on an authorised journey for work purposes the employer may be liable. In most states and territories, the relevant legislation is very broad and can include injuries incurred on journeys during lunch breaks or other breaks. Employers may even be liable if a worker injures themselves whilst getting a work certificate or whilst training at an external training provider.
In virtually all states, an employer is not liable for the injury if it is the result of serious and wilful misconduct of the worker.