Injured workers entering the West Australian workers’ compensation system often become frustrated by a lack of information surrounding medical appointments and examinations. Requests to
attend medical appointments, usually to be reviewed by a medical specialist can come from the worker’s employer, their insurer or the worker’s plaintiff injury lawyer. The medical reviews that these parties may request the worker to attend are for the purpose of obtaining medical evidence, in the form of medical reports. This evidence is used for various legal purposes relating to the management of the worker’s claim for compensation. The medical evidence obtained through these examinations can determine whether a worker’s weekly payments should be discontinued, whether the worker could return to work, the level of impairment resulting from the injury, how much lump sum compensation the worker could be paid and whether the worker could make an industrial negligence claim. Not attending or obstructing a medical appointment requested by the employer or their insurer can result in a range of consequences for an injured worker, the most serious of which includes the suspension of the worker’s right to claim compensation & in particular ongoing weekly payments of workers compensation.
Injured workers on workers’ compensation payments must also regularly attend medical appointments with their GP’s to obtain progress medical certificates regarding their incapacity to work and to also organise their own treatment. As anyone who has been sick or injured clearly understands, the process of visiting a GP, undergoing diagnostic testing and then being referred to a treating specialist is time consuming and disruptive. It is therefore not surprising that injured workers can become overwhelmed & frustrated by the various requirements to attend multiple medical examinations during the course of their claim.
I have been injured at work. Do I have to attend a medical examination if requested by my employer or their insurer?
The simple answer to this question is, yes. There are, however, a number of points on this issue that require clarification. Here, Section 64(1) of the Workers' Compensation and Injury Management Act 1981 ("The Act") notes that “where a worker has given notice of an injury he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer”. Further to this, Section 64(3) of the Act explains that a “reference in subsection (1) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer’s insurer”. Practically, this means that if the employer or the insurer organises and pays for a medical examination the injured worker must attend and submit to the examination.
This issue was dealt with in the case of Midalco Pty Ltd (Applicant) v Leonardo Della Rocco (Respondent) Unreported 204 Law Library Supreme Court Perth 1992, where the respondent worker was seeking compensation in regards to injuries stemming from an industrial disease. The applicant’s insurer arranged an appointment with a doctor of their choosing. The respondent refused to attend the appointment and argued that he be assessed by the Pneumoconiosis Medical Panel. Referring to Section 64 of the Act the Board held the insurer was entitled to an order for the worker to attend the medical examination arranged and suspended any right for the worker to receive compensation until he submitted to the medical examination.
Notwithstanding this ruling, there are a number of protections provided to injured workers through the operation of Section 64 of the Act and Regulation 8 in the Workers Compensation and Rehabilitation Regulations 1982 (“The Regulations”).
Here for example, an injured worker does not have to attend a medical examination:
- within 1 month from the date of a First Certificate of Capacity which states a further appointment has been made within 14 days;
- more frequently than once every two weeks;
- at any time other than during reasonable hours;
- with more than three medical practitioners who are specialists in the same field of medicine; or
- if they are seeking compensation for impairment or permanent damage to the back, neck or pelvis.
These protections were examined in the matter of RBD Building Maintenance v Cools (WA C9-2007, Nisbet P, 19 February 2007, unreported). Here, it was held that requesting a worker to attend a medical examination more frequently than every two weeks was oppressive and that the worker could lawfully refuse to attend such appointments.
Section 65 of the Act deals with the issue of medical examinations where the injured worker is receiving weekly payments from the insurer. Here, if weekly payments are being received and the employer or insurer organises and pays for a periodical medical examination then the injured worker must “from time to time submit himself for examination by a medical practitioner”.
What can happen if I refuse to go to a medical examination?
Section 72A(1) of the Act deals with situations that might arise if the injured worker does not attend a medical examination as requested. Here, the Act confirms that an arbitrator can make an order suspending the worker’s entitlement to compensation under the Act if the worker:
(a) being required by the employer under section 64 to submit himself for examination by a medical practitioner; or
(b) being required by an arbitrator to submit himself for an additional medical examination as defined in section 66A(1), being an examination additional to examinations under section 64, refuses or fails to do so or in any way obstructs the examination.
Section 72A(3) of the Act provides the arbitrator with discretionary powers which allow an application for an order against a worker to be dismissed if the worker is able to provide a reasonable excuse for not attending or obstructing a medical examination. Here, the onus of establishing a reasonable excuse sits with the worker. The worker must provide evidence supporting the rationale for the excuse and the arbitrator must examine these facts and determine whether the excuse is reasonable. Not surprisingly, the requirement for workers to submit to medical examinations has been abused by employers and their insurers who have, in some cases, applied the obligation in an oppressive fashion. This in turn has led to contracted conflicts with injured workers and some these conflicts have been heard by the courts. These cases have resulted in a significant number of common law decisions being made about exactly what is a reasonable excuse.
What happens to medical reports prepared following the medical examination & is the worker entitled to receive a copy?
If an employer or their insurer has requested that a worker be examined according to Sections 64, 65 or 66A of the Act, the employer or insurer must provide the worker with a copy of the medical report within 14 days of it having been received. Likewise, if the worker or their plaintiff injury lawyer has commissioned a medical report they must send a copy of the report to the employer or their insurer within 14 days of receiving the report.
What is a whole person impairment or approved medical specialist assessment?
In particular circumstances, workers’ compensation claimants need to obtain a permanent impairment or Whole Person Impairment (“WPI”) assessment. Pursuant to the Act, these assessments must be completed by an Approved Medical Specialist. Approved Medical Specialists (“AMS”) must be registered by WorkCover WA if they are to provide AMS assessments. AMS providers are specially trained to assess and report on the WPI of injured workers. Each AMS practitioner must provide their assessment according to the WorkCover WA Guide for the Evaluation of Permanent Impairment and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th edition).
Section 146A of the Act refers broadly to the requirement to undergo a WPI assessment and notes:
(1) Subject to sections 146B, 146C, 146D and 146E, a worker’s degree of impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides.
(2) If a worker and the employer do not agree about the evaluation of the worker’s degree of impairment, it is to be assessed by an approved medical specialist or, if this Act so provides, an approved medical specialist panel.
More specifically, AMS and WPI assessments are required if the injured worker intends:
- to seek a Schedule 2 or lump sum compensation payment for permanent impairment;
- to make an industrial negligence claim at common law; or
- to make an application for medical treatment or payments due to exceptional medical circumstances.
AMS Assessments For Schedule 2 Lump Sum Compensation Payments
Section 146B of the Act provides guidance on the WPI assessments that are required to make a claim for Schedule 2 lump sum compensation payments (for specified injuries). In these claims, an AMS must first, determine whether a worker's condition has stabilised to such a degree, that an evaluation of the extent of impairment, can be completed. If the AMS determines that the injured worker’s symptoms have stabilised and have reached maximum medical improvement they must issue a report confirming this position. Where the injured worker’s medical status has not stabilised the AMS is required to issue a report detailing this situation.
Section 31C of the Act details how a worker with an assessed permanent impairment must elect to receive a lump sum compensation payment. The worker completes the election by filling out and signing WorkCover WA Form 1A. The right to this lump sum compensation attaches solely to the injured worker and cannot be redeemed by another individual or legal entity in the event of the worker’s death. Section 31C(1) of the Act explains that the:
...compensation payable for each such impairment is to be in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 2 of the in Schedule 2 in respect of such an impairment at the date of the accident by which that injury was caused to the worker, irrespective of when the worker so elects.
Put simply, a Schedule 2 lump sum compensation payment is based on a calculation involving the WPI percentage of the workers’ injury and the percentage value that the prescribed amounts (in Schedule 2) allocate to injuries to particular parts of the body. These calculations can be complex and highlight how important it is for the injured worker to obtain the best possible supporting medical evidence and legal advice from an expert plaintiff injury lawyer.
AMS Assessments For Industrial Negligence Common Law Claims
Section 146C of the Act refers to particular AMS assessments or special evaluations that are required for the purposes of electing to make a common law or industrial negligence claim. Section 146C(4) of the Act explains that a ‘special evaluation’ is to be made “even though the worker’s condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation”. Generally, an assessment of permanent impairment is only completed once the injured worker has attained a position of maximum medical improvement.
In order to make a common law claim against the employer, the injured worker must obtain an AMS WPI assessment of 15% or above and establish that the employer was negligent in not providing a safe work place or system of work. The worker must register their election to make a common law claim and their AMS assessment of impairment with the Director of Dispute Resolution at WorkCover WA.
How can Separovic Injury Lawyers assist you in dealing with medical examinations?
The requirement to attend medical examinations can be a point of great friction between the employer, the employer’s insurer and the injured worker. Being asked to attend medical appointments when you are suffering from a work injury can be very frustrating, extremely painful and in some cases can hamper your recovery. It is important to clearly understand your legal rights but also your obligations under the workers’ compensation system. Not attending or obstructing a medical examination can have very serious consequences upon your compensation claim. Here, in the most serious cases your right to compensation can be suspended. Non-attendance at medical examinations can also have a very disruptive impact on the successful management of a workers’ compensation claim. If you have any concerns or queries about whether your employer or insurer is being unreasonable in regards to medical examinations please contact Separovic Injury Lawyers for no fuss, down to earth legal advice.