A WorkCover IME doctor disagrees with my doctor

There are a number of instances during your WorkCover matter in Victoria where an independent medical examiner (IME) might disagree with your own treating doctor.

Here are some of the most common:

In relation to your work capacity

For example, your own treating doctor may opine that you have no work capacity but an IME believes that you have a capacity.

There may also be a disagreement in terms of suitable work duties and/or hours.

In relation to whether an injury is stable

This is relevant in relation to an impairment claim.

Your treating doctor may write a report in which he/she opines that your injury is stable.

Here’s when an injury can be considered stable.

Once an injury is stable, it can then be medically assessed for the purposes of an impairment claim.

Whereas an IME might conclude after you’ve seen them that your injury is not stable and you, for example, need to come back and see them in 6 – 12 months.

This tends to happen more-so in claims involving psychological injury, but can happen in claims relating to physical injury.

In relation to medical treatment

This is a common issue where IME’s and treating doctors have different opinions.

Sometimes a person’s treating doctor may recommend, for example, that they undergo a certain type of medical treatment – such as surgery – whereas an IME might believe the proposed treatment is not required.

Whether injuries are work related

Despite support from a person’s treating doctor, an IME may opine that a persons injury is not related to their employment.

This typically arises when a claim is initially being determined or during the impairment claim process.

What happens when an IME disagrees with your doctor?

The first thing you need to be aware of is that WorkCover insurers will rarely choose the opinion of a treating doctor over that of the independent medical examiner that they have arranged.

So for example, if your treating surgeon says that you should have surgery and the IME who the insurer organised for you to see concludes that the surgery is not recommended, in most instances the insurer will prefer the opinion of the IME and reject your surgery request.

In limited circumstances an insurer may prefer the opinion of a treating doctor over an IME.

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This might occur, for example, when the insurer believes that the IME’s conclusion is not correct – such as in the case of the IME not having all of the material needed in order to provide an accurate opinion (eg: a recent MRI scan).

What are your options?

If there is a medical dispute in which an IME and your treating doctor disagree, and the insurer prefers the opinion of the IME and makes a decision in line with the IME report, then in many instances should you wish to appeal that decision you can do the following:

The first thing you can do is request that the insurer performs an internal review.

However, in most instances we wouldn’t recommend this step when there is a dispute between an IME and a treating doctor unless there is new medical material that you can provide that supports the position of your treating doctor.

If you asked for an internal review after the insurer has made a decision based on the opinion of an IME, in most cases if you don’t provide any further medical material the original decision will be maintained by the insurer.

In most cases, we would recommend that people pursue the matter to conciliation first.

Prior to conciliation it would be a good idea to obtain medical material in support of your position.

One thing you might want to consider doing is to provide the independent medical examiners report to your own doctor and ask them to provide comment on the report.

A word on this however.

Any medical material that you obtain in relation to this dispute may be used in an impairment claim or a common law claim

And so if you request material yourself without assistance from a lawyer, the doctor may provide a report that is helpful for the dispute at hand, but it may have an impact on your impairment claim or common law claim (the common law claim in particular).

Here’s an example:

Let’s say that you have a physical, work related injury.

And secondary to that, you have developed depression.

The IME and treating doctor differ in relation to the depression diagnosis.

The IME believes that the depression did not develop secondary to your physical injury, but your treating doctor believes that it did.

And as such, the WorkCover insurer refuses to pay for any medical treatment related to the depression.

In the course of trying to contest the insurers decision not to pay for medical treatment relating to the depression, the treating doctor provides a report that is helpful in addressing whether the depression developed as a consequence of the physical injury.

However, they may also write in their medical report that in their opinion at this point in time it is the depression that is stopping you from performing to your pre injury duties, rather than your physical injury.

While this may be the case at the time the report was written, when it comes time to make a common law claim, the other side may rely on that comment from your treating doctor.

This could be an issue if your position is that it is your physical injury that is the cause of your incapacity for work.

Your lawyers would need  to consider carefully how they approach the issue in preparation of your common law claim

If the matter doesn’t resolve during the conciliation process – which is quite common in these types of matters – then you can elect to proceed to the medical panel if the decision does not involve any factual issues. Alternatively you can proceed to the WorkCover Magistrates Court.

You may require further medical support in addition to your treating doctor/s

One option for you, which for the most part is really only utilised if you have WorkCover legal representation, is to obtain an opinion from another independent doctor (called a medico-legal doctor).

Essentially, it involves attending another IME but this time one that your lawyers arrange, rather than the insurance company.

These are doctors that you might see on a single occasion, sometimes more than one, who will not treat you but who will assess you and provide their own written opinion.

For example, say that you have consulted with a specialist for medical treating of a shoulder injury and that specialist opines that you need shoulder surgery.

The insurer sends you to an IME and that IME writes a report saying that in their opinion you don’t require that operation.

Your lawyer may in this instance arrange an appointment for you to see an orthopaedic surgeon for an assessment.

And so rather than just having the opinion of your treating specialist, perhaps also supported by your GP, you may also have further support from another specialist.

These medico-legal assessments can sometimes serve more than one purpose and also be used for other parts of your WorkCover matter.

For example, using the example above, the medico-legal report obtained may also be used in support of a common law lump sum claim.

Conclusion

It’s quite common in WorkCover matters for an IME doctor and a treating doctors to have different opinions in relation to a medical issue

And in most instances, insurer’s will prefer the opinion of the IME doctor over a treating doctor.

If the insurer makes a decision in relation to your WorkCover matter relying on the IME doctors report that you disagree with, then you can ask for internal review (generally not recommended) and/or proceed to conciliation.

If the matter doesn’t resolve, you can then elect to proceed to the Medical panel or the WorkCover Magistrates’ court.

In some instances, depending upon the nature of the dispute, you may wish to obtain further medical opinion in support.

This might involve asking your treating doctor to provide a report with their thoughts on the IME report.

It might also involve attending a medico-legal assessment.