Independent medical examinations and reports during the COVID-19 pandemic Guidance for referrers

This guidance is issued by the State Insurance Regulatory Authority (SIRA) to insurers and injured person's legal representatives who are considering making referrals for medicolegal examinations during the current COVID-19 pandemic.

When considering whether it is appropriate to refer an injured person for a medicolegal examination, SIRA expects that the referrer assesses each matter on a case-by-case basis. In addition to making any necessary procedural modifications as a result of the pandemic, referrers should prioritise matters to determine their appropriateness for referral, considering the following:

1. The urgency of the matter, including any potential impact of delay on the injured person
2. The method of assessment most appropriate to resolve the matter, including options such as video examination, providing that the examination method complies with the relevant Regulations, Guidelines and Fees Orders.
3. How to avoid or minimise any risks to the safety, health, and wellbeing of the injured person and health practitioner where an ‘in person’ examination is deemed necessary, and
4. In light of the above, whether the examination can be postponed until a later date, also noting any potential impact of delay on the injured person.

Each of the above is explained in more detail below.

1. Urgency of the matter

Referrers must firstly assess the level of urgency for the examination based on its purpose.

Is it to determine one or more of the following:

• liability (and therefore determine whether the claim will be accepted)
• the appropriateness of proposed treatment (noting the impact of treatment delays and access to procedures that may not be available in the current COVID-19 environment)
• the injured person’s degree of permanent impairment (and therefore, access to some types of compensation)

Additional factors to consider include when the injured person is:

• nearing the expiration timeframe of their statutory benefits¹
• experiencing financial hardship
• suffering a terminal illness and requests an assessment, or
• has residency or visa restrictions.

Where a matter is urgent, an assessment should be prioritised and expedited.

2. Method of assessment

In determining the appropriate method of assessment, the referrer must consider this on a case-by-case basis, factoring in:

• the injured person’s unique circumstances:
  • advice from the Australian Government and NSW Government in relation to COVID-19, including public health restrictions in place from time to time, and other relevant considerations
  • the injured person’s access to, and familiarity with, software and hardware (for telehealth services),
  • including injuries, geographical location, transport and accommodation requirements, and other important factors such as the type of examination required and the injured person’s preference
• consider whether sufficient information is available from other sources, such as treating practitioners or independent opinion reports
• consider whether there is sufficient information on file to conduct an evaluation ‘on the papers’
• consider whether a combination of methods can be used, such as taking an oral history by telephone and only conducting the physical examination ‘in person’
• ensure that the referral complies with all relevant legislation and regulatory requirements:
  • For workers compensation matters:
    • Part 7 of the Workers Compensation Guidelines [1 March 2021], in particular:
      • Part 7.1 ‘Reasons for referral’ and
      • Part 7.6 ‘Further independent medical examinations’
    • NSW workers compensation guidelines for the evaluation of permanent impairment (if applicable)
  • For motor accident matters:
    • Motor Accident Guidelines: claims handling and medical (treatment, rehabilitation and care) [1 January 2017], for accidents before 1 December 2017
    • Motor Accident Permanent Impairment Guidelines [1 June 2018] (if applicable) for accidents before 1 December 2017, and
    • Motor Accident Guidelines [17 December 2020] for accidents on or after 1 December 2017.

The accuracy of the assessment is crucial. The accuracy of a telehealth examination may be compromised where an extensive physical examination would normally be undertaken (such as musculoskeletal or neurological injuries). The method of assessment selected must ensure accuracy is maintained.

Other issues of suitability should be considered when determining whether to proceed with an assessment, such as whether the injured person requires:

• an interpreter
• professional support at the time of assessment, or
• a carer/support person.

Referrers are reminded that the injured person’s cooperation is required and therefore they need to be advised of the proposed method of assessment prior to the assessment taking place.

3. Avoiding or minimising risks to safety, health and wellbeing

In determining whether an examination should proceed, the referrer is to consider whether the examination is likely to impact the injured persons’ safety, health and wellbeing.

Consideration should be given to:

• the injured person’s injury, including whether it is physical or psychological
• the injured person’s preference
• the injured person’s overall health, including those:
  • with health conditions that increase the risk of infection eg. chronic medical conditions; compromised immune system
  • who are over the age of 70, or who are over 60 with other health issues, or who are over 50 for Indigenous Australians
  • advice from the Australian Government and NSW Government in relation to COVID-19, including public health restrictions in place from time to time, and other relevant considerations.

Where an ‘in person’ assessment is deemed necessary, the health practitioner should follow COVID-19 advice from the Australian Government, NSW Government, and their National Boards relating to conducting examinations.

In addition, it may be appropriate for the health practitioner to:

• Conduct a risk assessment prior to the examination, including implementing telephone screening protocols
• Undertake the history component of an examination via telephone/video prior to the appointment in order to limit the amount of ‘in person’ contact time on the day, or
• Ensure that the injured person, health practitioner and their staff wear personal protective equipment, if appropriate.

Where telehealth services are deemed appropriate, it is recommended that the method of examination and the platform used is stated in the report (e.g. Skype for business video conferencing used, ‘in person’ assessment, history taken by telephone, etc).

Prior to arranging a telehealth examination, the referrer must confirm that the examiner is using a platform with end-to-end encryption to ensure the safety and security of the examination process.

4. Postponing examinations

It may be appropriate for medicolegal examinations to be postponed in instances where:

• The matter is not urgent for one of the reasons mentioned above
• An appropriate method of examination is not available, or
• An examination is likely to cause an unreasonable risk to the injured person and/or health practitioner’s safety, health and wellbeing
• Where the injured person and insurer agree that the examination should not proceed.

In instances where not undertaking an examination is likely to have an impact on prescribed timeframes, the referrer should refer to the relevant guidance provided by SIRA for more information.