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Barry Lane
25 May, 2010  
The never ending quest

Injured workers seem to have multiple bites of the cherry until they stumble on the “right” opinion from a medical panel … Barry Lane’s eyes are watering as he contemplates the cost to the long suffering taxpayer … Time for some parliamentary penmanship


imageEnough is enough, I say.

Someone in Spring Street has to do something about the crazy waste of taxpayers’ hard-earned in the Victorian workplace compensation system.

Back in 2007 I wrote about the “all-singing, all-dancing” wonderful new way to save time and taxpayers’ money by sending workers off to medical panels to have the cause and extent of their injuries assessed by an “independent” panel of qualified medicos.

Sounds logical. Worthy medical persons appointed from “both sides of the aisle”, as the Americans say, sitting in panels of three to get the result right.

Panels get asked questions, a list of which is helpfully set out in s.5 of the Accident Compensation Act 1985, by the party making a referral.

A panel of appropriately qualified and experienced medicos is appointed by the Convernor of Medical Panels to examine the worker and provide an opinion by way of answers to the questions put to them.

Although panels provide accompanying “reasons” for their opinion, only the answers to the questions posed are binding on a court.

Who would’ve thought that this simple idea would have provoked such enormous additional cost and inconvenience to the system?

Well, when you leave lawyers to spin the litigation top, as Tulkinghorn and a recent report from Ireland attest, stand back and set up a direct one-way link to the State Treasury.

Why is this so?

If one party or the other doesn’t like the panel opinion they don’t just battle on, as they would be required to if panel members were witnesses in court, they challenge the opinion by collateral proceedings in the Supreme Court.

Mind you, one can understand such attacks because if an opinion comes back which is fatal to a worker’s claim, then it’s good night nurse.

Since the jurisdiction of medical panels has been extended from its more limited origins, applications to the Supreme Court under the Administrative Law Act 1978 have expanded exponentially.

The usual attack is that the panel totally misunderstood the worker, his case or they were just so dopey they had no idea what they were there for.

Opinions are regularly set aside and referred back for further opinion by a differently constituted panel.
Clarke v National Mutual Life Assurance Ltd is a recent example of the process running amok.

It appears that the worker, a computer programmer, allegedly suffered from some sort of work-induced psychological disorder.

Employers and the VWA hate these sorts of claims because they reckon the people who make them are just money-grubbing malingerers.

They fight them tooth and nail, just like they used to fight RSI claims until the medicos finally wised-up and got on the program.

Not unnaturally in such cases, a number of employers for whom the worker had toiled over a number of years robustly disputed his claim.

imageBy the time the Court of Appeal came into the frame, the worker had already been off to two panels and got opinions he didn’t like.

Justice Jack Forrest (pic, left) in the Supreme Court trashed the first opinion in 2007 because the relevant panel couldn’t get its reasons right.

In HH’s view, the panel didn’t explain why it opined that the worker suffered from a “paranoid personality disorder” (which, no doubt, meant that the worker had no impairment caused by his employment) whereas opinions put to the panel on behalf of the worker concluded that the worker had an “adjustment disorder” or a “chronic adjustment disorder” resulting from his employment.

And the second panel was of no assistance to the worker either, because it was of the opinion that there was no connection between the worker’s alleged illness and his former employment.

In the normal course, that should have put paid to his claim.

Undeterred, and while the worker’s application to demolish the second opinion was awaiting determination in the Supreme Court, the worker’s lawyers tried to keep his moribund claim in the County Court alive with a bit of procedural dexterity.

They made an application to amend his statement of claim by setting-up a claim that they hadn’t thought of before to cover themselves and the worker should, perish the thought, the attempt to overturn the second medical opinion fail.

Although County Court Judge Phil Misso refused the application to amend, the Court of Appeal unanimously opined that HH should never have fallen for the manoeuvre in the first place!

If HH had not been distracted by counsel for both sides, the Court of Appeal said that he should’ve declined to hear the application until the Supreme Court challenge to the second opinion had been determined.

As best as I can make out, the worker’s claim for weekly payments of compensation, which began in 2005, is still limping along, fatally wounded if the second panel opinion is allowed to stand, but if a Supreme Court judge throws it out then the worker’s suit gets the kiss of life along with a third bite of the cherry.

My eyes are already watering thinking about the cost to taxpayers of this extravaganza in stupidity, but that won’t bring it to an end.

Only the pollies can do that by getting out the legislative pen.