This edition was issued on 15 February 2022
Personal Injury Commission – Medical Assessments
In the Personal Injury Commission News issued on 31 January 2022, I announced the recommencement of in-person medical assessments from 21 February 2022. I also published the refreshed versions of Procedural Direction PIC 11 and the Protocol for Medical Assessments During the Coronavirus Pandemic.
As has been the case during the COVID-19 pandemic, now into its third year, various plans, procedures and practices can have a relatively short shelf life as conditions change, public health orders are made or withdrawn, and new variants of the virus arise. All this has made the conduct of tribunals and in particular the undertaking of in-person medical examinations somewhat fraught.
Below is the Commission’s best assessment of the situation, including the current backlog of
in-person medical assessments, for your consideration. The best assessment of the situation is that it will take most of 2022 to clear the backlog, although this could be impacted by whatever further twists and turns the pandemic visits on our community.
The purpose of publishing this information is to enable practitioners and Commission users to be aware of the situation and to adjust expectations accordingly. We will continue to monitor the situation and provide timely updates as the year progresses. If it once again becomes necessary to suspend in-person medical assessments to protect the health and safety of claimants, our Medical Assessors and their staff, that is a decision that I will take.
I will be in touch with another edition of Personal Injury Commission News soon.
Judge Gerard Phillips
COVID-19 impact on in-person medical assessments
To understand where the Commission currently is, it is timely to reflect upon what has happened since March 2020, when the impacts of the coronavirus reached Australia.
At that time the two legacy organisations to the Commission, the Dispute Resolution Service and the Workers Compensation Commission, ceased their in-person operations on or about 23 March 2020. This was the commencement of the first New South Wales lockdown and as a result in-person medical assessments were also suspended.
When the lockdown orders were lifted later in 2020, various Public Health Orders still remained in place. In particular, significant travel restrictions remained for much of that year. It is also to be remembered that during this period, no COVID-19 vaccine was available or approved for use. As a result, both legacy organisations, when they were able, recommenced partial in-person medical assessments.
The new Commission commenced on 1 March 2021 and acquired the existing backlogs from the two legacy organisations; although it is true to say that the backlog on the motor accidents side was much larger in numerical terms, this is simply because applications for medical assessment are both a larger percentage and a larger number of the work in motor accidents. By May 2021, the full suite of in-person medical assessments had recommenced across both divisions of the Commission.
The Delta variant outbreak commenced in June 2021 with restrictions commencing on 26 June. This lockdown and consequent restrictions lasted until October 2021 when in-person medical assessments were able to be recommenced.
However, over Christmas/New Year 2021-22 the Omicron variant became virulent in our community leading to the third suspension of in-person medical examinations. This suspension will last until 18 February 2022. There are a number of matters regarding the chronology set out above which are important to understand. They are:
- During 2020, up to July 2021, filings for medical assessments in both divisions continued to be made at their pre-pandemic rate.
- This meant that claimants and/or their solicitors were able to obtain specialist medical reports either from qualified doctors or from treating doctors which then enabled the commencement of proceedings in either the two legacy organisations or the Commission once it opened on 1 March 2021.
- However, during the 2021 lockdown between July and the end of October 2021, practitioners were generally unable to obtain qualified doctors’ reports due to the application of the then Public Health Orders and the restrictions arising.
- During 2020 and 2021, regional areas were particularly affected by either travel orders and/or the lockdown orders, which became particularly difficult for us to be able to allocate medical assessments for regional claimants. We were for a while able to direct regional claimants to some of our regional Medical Assessors, but this ceased when public health orders changed.
- As described above, claimants’ lawyers found it difficult during the Delta lockdowns in the second half of 2021 to obtain qualified doctors’ reports. With that lockdown now finished and the Omicron outbreak receding, medico-legal services are once more operating and as a result we do expect to see an increase in filings during this year.
- What this means is that there is currently significant pressure on the Commission’s medical assessment list and the Medical Assessors themselves. We not only have the matters which were delayed by the various lockdowns and restrictions which have taken place from March 2020 to date, but also the expected increase in filings as particularly plaintiff practices have been able to once again access medico-legal opinions. Additionally, both new filings and matters in our backlog are complicated by the vaccination status of some claimants. At present we can only offer virtual examinations to unvaccinated claimants, not in-person assessments. The President and Principal Registrar however, in exceptional circumstances, reserve the right to make particular arrangements with regard to an unvaccinated claimant accessing an in-person assessment.
The situation that I have described above has created a backlog of in-person medical assessments and consequent delays in our operations. This is an unavoidable consequence of the ongoing effects of the COVID-19 pandemic. The Commission has implemented several different strategies to deal with this including:
- Moving psychiatric assessments online. Almost every psychiatric assessment has been able to be conducted online. A small percentage could not but for the most part this measure has been quite successful. The information that we are receiving from both Medical Assessors and claimants’ lawyers is that the claimants have preferred this manner of assessment and it has worked very well.
- We have offered virtual assessments of claimants for some physical injuries where the Medical Assessor considers that it can be fairly done and the claimant and his/her advisers have consented to that path. Unfortunately, the take up of this offer has been very low, with the feedback from the profession being that claimants and their lawyers would rather wait for the in-person assessment.
- The construction of the Commission’s new medical rooms at 1 Oxford Street is substantially advanced. These rooms should be open for use, pandemic permitting, by June 2022. We are currently working on an operating model which we will employ, probably for the first 12 months of the rooms’ operations, in order to tackle the COVID-19 backlog. Many of the Commission’s Medical Assessors have indicated great enthusiasm for the new medical suites and they will be an important tool in dealing with the COVID-19 backlog.
- We have offered, and continue to offer, consent mediations for medical disputes where it is not possible (for whatever reason) for an in-person medical examination to take place. For example, if your client is overseas or interstate and is not able to attend an in-person assessment, and if you have sufficient medical evidence, we will continue to offer the services of our Members and mediators to provide assistance in resolving such disputes.
- In order for the resumption of in-person medical examinations from 21 February 2022, the Commission has procured a quantity of rapid antigen testing kits from NSW Government supplies. These are being delivered to Medical Assessors’ practices to enable the recommencement of in-person assessments. Obviously as things stand at present with the pandemic, our continued ability to conduct in-person medical examinations will be dependent upon either the doctors, the Commission, or both, being able to source adequate numbers of rapid antigen tests for however long the need exists to implement this testing system. As you appreciate, there are many calls being made regarding the supply of such kits.
- We have also conducted a recruitment for new Medical Assessors and this new group, supplementing the existing cohort, will begin seeing claimants once their process of induction and training has been completed in March.
Notwithstanding the above mitigation measures, it will take time to deal with not only the backlog of delayed medical assessments, but also the increased filings we are now experiencing. The IRO also reports that as at January 2022, almost 1,200 ILARS grants were impacted by the COVID-19 pandemic, most commonly as a result of delayed medical examinations and assessments. Once these matters are once more able to progress, this will obviously impact operations in the Workers Compensation Division.
There will be delays in dealing with medical assessment and medical panel matters across both divisions, probably for the best part of 2022. In-person medical assessments are particularly challenging in that not only do they involve travel to the Medical Assessors’ rooms, they involve close contact with the Medical Assessor over the period of the assessment, usually no less than an hour. Whilst this was difficult earlier in the pandemic, the Omicron strain has proven to be quite contagious thus increasing the risk during in-person medical examinations.
As our in-person medical assessments begin to ramp up from 21 February, this will have a consequent effect upon the lists of matters before Commission Members. Obviously those cases which would have progressed to hearing before a Member but for the delay in obtaining an in-person assessment will now be able to move to the Members. I am anticipating therefore that the list before Members in both divisions will be adversely affected in terms of timeliness.
What can users and practitioners do to assist in this situation
Procedural Direction PIC11 and the Protocol for Medical Assessments During the Coronavirus Pandemic have recently been updated on the Commission’s website. Please ensure that all claimants who are candidates for in-person medical assessments are aware of the contents of these documents and that the requirements therein are strictly complied with. Once we are able to recommence the full suite of in-person medical assessments from 21 February 2022, we do not wish to lose, waste or further delay any of these in-person assessments. If claimants are not vaccinated or do not attend and the appointment is thus lost, it will take much longer for the backlog to be dispensed with.
If for whatever reason a claimant does not wish to attend a scheduled medical assessment, please inform Commission staff as soon as possible so that the particular appointment can be reallocated. I fully understand and appreciate that individual claimants may be anxious or concerned about attending such an examination during the currency of the pandemic.
This Personal Injury Commission News has gone into some detail about the history and current circumstances of in-person medical assessments in the pandemic, as I considered this to be essential to inform all users and practitioners of this situation and its likely duration. Commission staff will work hard with you to deal with this problem diligently and methodically.
However, notwithstanding these efforts, delays particularly in regard to in-person medical assessments will be a part of the landscape, certainly for 2022, possibly for longer. One thing that we have learnt during the past three years of the pandemic is that situations can change quite quickly. Thus far there have been two variants, the Delta and Omicron variants, and the advice from medical specialists is that the world can expect further variants down the track. But we can only deal with what has happened and what we know and set out in this edition of Personal Injury Commission News is our appreciation of the situation and a description of the various steps we are taking to try and mitigate the continuing effects of the pandemic.
As at the time of the issuing of this Personal Injury Commission News, ATAGI and health departments around the country are reconsidering their view as to what being fully vaccinated means. Namely, does this involve having had a booster shot? As of February 2022, ATAGI is adopting the terminology ‘up-to-date’ vaccination status in its general vaccination schedules.
This question might be answered in the very near future and current indications are that recommendations that ‘up-to-date’ vaccination status will also include a booster shot and this could alter the situation for individual claimants who have not yet had their booster shot. I would therefore encourage users and legal practitioners to consider this matter carefully and obtain your booster shot as soon as you can. This will serve to make it easier for claimants to keep scheduled medical examinations if this change is made by governments.
I thank you for the time that you have taken to consider this Personal Injury Commission News and I will keep you informed with regards to any updates. Clearly what we have learnt from the pandemic is that things can change quickly. The Commission, all users and legal practitioners therefore need to be able to respond flexibly to whatever new challenges arise while the pandemic continues to affect our community. Thus far during the pandemic everybody involved in the Commission’s operations has responded magnificently to this challenge and I have little doubt that this approach will continue for however long we have to contend with these trying circumstances.
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