Published: 29 August 2017
Author: Creon Coolahan
3 questions from medical professionals about a WorkCover claim
Following a series of workshops, it has become clear to our firm that there needs to be greater education amongst the medical profession about just how vital a medical report is in the recovery process for their patients.
1) Why do WorkCover lawyers (on both sides) insist on obtaining copies of my clinical or treatment notes?
This is because clinical notes (usually) contain a written contemporaneous record of the verbatim history provided between medical expert and patient in a setting where the patient is often very frank.
For this reason, the WorkCover insurer and its lawyers are always keen to view clinical records. For example, some things they look for are:
- Inconsistencies between the histories the patient has given to you and to other doctors. It can be simple matters about the patient having complained of pain in some other area of the body when first seeking treatment; to disclosing that they are doing “cash work” for someone; or that they are contemplating a return to work, when they have asserted elsewhere that they cannot work;
- The patient’s description to what actually happened to them when their accident occurred. Medicos are often the first port of call after an accident so a Court will consider clinical notes of high forensic value, compared to a patient’s recollections in the witness box a number of years later; and
- Evidence of the patient not accepting treatment advice, or failing to follow up on treatment recommendations;
We are eager to see the notes so that we can try and anticipate which of the above issues could potentially be a focus for attack by the insurance company. Thorough examination of the clinical records is a good strategy against ambush by the insurance company.
We are not seeking the notes because your patient has an axe to grind with you, or to look over your shoulder to see if our client is getting good medical advice.
2) Why do you ask me so many questions in the covering letter when you seek a medical report from me?
The questions we ask are often determined by the stage the claim is at and what entitlement we are pursuing for a patient at that time.
In order to access the WorkCover system your patient will need to establish on the balance of probabilities that he or she has suffered an injury arising out of, or in the course of, or due to the nature of, the relevant employment.
This is why we often ask you for your diagnosis in relation to the claimed injuries, the history you obtained from the patient about the circumstances that gave rise to those injuries, and for your opinion as to whether the patent’s incapacity for work results from, or is materially contributed to, the claimed injury.
In order to receive weekly payments of compensation the patient must demonstrate that the claimed injury causes them to have an incapacity for work. This is why we ask whether the patient is capable of working at all, and if so to what capacity. If the patient is capable of working we are keen to know what work restrictions are recommended so that the employer complies with them, or so that appropriate retraining can occur and the patient can start work elsewhere.
After your patient has received 130 weeks of weekly payments they must establish the either of the following to continue to be entitled to receive further weekly payments of compensation:
- That they have no current work capacity and are likely to continue indefinitely to have no current work capacity; or
- They have returned to work and are working at least 15 hours a week, but because of their injury they will indefinitely incapable of undertaking further or additional employment or work that would increase their weekly earnings.
We will ask you specifically about the above matters. These are make or break issues for people with long term injuries.
In order to qualify for funding of medical treatment, counselling, physical therapies and other forms of treatment and services a patient must show that the treatment they seek is “reasonable”. This is why we ask whether our client requires any treatment, and we often ask for clinical justification so as to satisfy the “reasonableness” requirement.
In order to qualify for a lump sum impairment benefit, the patient needs to show that their injury has resulted in a permanent impairment. They must show that the injury has stabilised and reaches a certain degree of impairment under WorkSafe’s Guides. This is why we ask whether our client has suffered a permanent impairment as the result of their injuries, and for details about their prognosis.
We might also ask you about sequelae to the accepted injuries. Examples might be stomach ulcers from long term ingestion of analgesics; impotence arising from
anti-depressant medication; or cardiac conditions arising from long term depression. This is because the legislation requires a patient to list in their lump sum claim form all of their injuries arising out of the same event or circumstance. The patient is barred from making a later claim to pick up on any other injuries might become apparent later.
In the context of a Common Law damages claim (or “serious injury application”) we will ask about the consequences that the patient’s injuries have had for their work capacity and their social, domestic and recreational activities. This is because a patient must show that they have sustained a “serious injury” in order to sue anyone for Common Law damages.
We will also use your medical report to contrast the worker’s pre-injury state with their present disabilities. We also often ask medical professionals to put certain injuries to one side and then comment upon the effect a single injury or condition has upon the patient’s work capacity and their social, domestic and recreational activities. This is because the patient has to identify and demonstrate that one particular injury or condition constitutes a “serious injury”, and they can’t aggregate or “add up” the effects of all of the injuries they have sustained and say their combined effect is serious.
3) How vital is the detail in medical reports?
A detailed and well-written medical report that is responsive to the questions in our letter of request gives our clients’ treating medical professionals the best chance of not being called to Court to be cross-examined by the WorkCover insurer’s Barrister.
Providing us with a detailed and responsive medical report also best serves the patient’s interests and ensures they can continue to receive the income support and medical treatment they need while they do their best to recover.
In contrast, a five-line medical report that purports to adequately address five years of monthly attendances upon the patient and/or which fails to address any of the questions in our letter of request is more likely to earn the patient and the medical expert a trip to Court.
We encourage our clients and medical professionals to work with a legal team to navigate the technical aspects of a WorkCover claim. For further information contact Stringer Clark at 1800 641 743.