Medical Appeals in the Workers Compensation Commission Sian Leathem, Registrar

Introduction 1.Disputes in the WCC 2.Medical Disputes 3.The Appeal Process 4.The Consolidation of Appeal Panels 5.Trends and Outcomes in Medical Assessment

Types of Disputes in the WCC

Medical Disputes Liability for Permanent Impairment lump sum compensation determined by an Arbitrator Disputes concerning the degree of permanent impairment as a result of an injury are “medical disputes” (s319 WIM Act) Must be determined by an Approved Medical Specialist (AMS) Referred by the Registrar (ss321(3) & (4) WIM Act) Parties provided with a copy of the referral in all matters

Medical Assessment Powers of an AMS prescribed in s324 WIM Act Section 325 WIM Act requires an AMS to issue a Medical Assessment Certificate (“MAC”) AMS must provide reasons for assessment (s325(2)) WIM Act

The Appeal Process- Lodging an Appeal Suggested reading a. Registrar’s Guideline on Medical Appeals b. WorkCover Medical Assessment Guidelines (Chapter E) Lodged via Form 10 WCC checks appeals for compliance with Registrar’s Guideline and WorkCover Medical Assessment Guidelines Opportunity to rectify if defective Timetable/directions provided (7 days to serve, 14 to reply) Referred to delegate for s327(4) determination

The Appeal Process- 1 st Stage

The Appeal Process- Jurisdiction S327(1) provides for appeal against medical assessment A party can only appeal against matters conclusively presumed to be correct (s327(2)) Matters conclusively presumed to be correct are defined in s326(1) WIM Act (degree of permanent impairment, whether impairment due to pre-existing condition, nature and extent of hearing loss, whether impairment permanent, whether impairment fully ascertainable)

The Appeal Process- Grounds of Appeal S327(3) defines the grounds: a.Deterioration that results in an increase in permanent impairment b.Additional relevant information c.Application of incorrect Criteria d.Demonstrable error (see Bunnings Group Limited v Peter Howard HICKS & Ors [2008] NSWSC 874 for a useful description of “demonstrable error” )

The Appeal Process- Time limit 28 day limit for grounds s327(3)(c) incorrect criteria and (d) demonstrable error Time is calculated in accordance with Rule 8.1(6) of the WCC Rules Rewitu Pty Ltd v The Registrar of the Workers Compensation Commission of New South Wales & Anor [2007] NSWSC 441

The Appeal Process- “Special Circumstances” Appeal under grounds s327(3) (c) and/or (d) outside 28 day limit- not to proceed unless special circumstances justify an increase in the period for an appeal Submissions must address “special circumstances” See Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 101 and Robertson v Registrar of the Workers Compensation Commission & Beny’s Joinery Pty Ltd [2008] NSWSC 918 for interpretation of “special circumstances”

The Appeal Process- the “Gateway” Determination S327(4)- appeal not to proceed unless Registrar satisfied on face of submissions and application, at least one ground of appeal is made out Registrar is “gatekeeper” of appeals Bunnings Group Limited v Peter Howard HICKS & Ors [2008] NSWSC 874

The Appeal Process- 2 nd stage- Referral to Appeal Panel

The Appeal Process- Power and Procedures of Appeal Panels S328(1) – Panel constituted by two AMS’s and an Arbitrator Powers of review - Siddik v WorkCover Authority of NSW [2008] NSWCA 116 Procedures- Guideline 45 WorkCover Medical Assessment Guidelines Preliminary review required in all matters Panel may finalise “on the papers” at preliminary review, hold an assessment hearing or conduct a further medical examination Whether appeal determined “on the papers” is a discretionary matter for Appeal Panel (Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586)

The Appeal Process- Assessment Hearings Panel may hold an assessment hearing Conducted on Commission premises Section 328 WIM Act does not mandate an assessment hearing Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 In many matters, appeal may be determined “on the papers” Consequently assessment hearings are rare Panels must consider a request for an assessment hearing Dar v State Transit Authority of NSW [2007] NSWSC 260

The Appeal Process- Further Medical Examination Power to conduct further medical examination arises from AMS’s powers under s324 of WIM Act (s324(3)) Further medical examination is not mandatory and is a matter for the Appeal Panel Bojko v ICM Property Service Pty Ltd & 2 Ors [2008] NSWSC 907 Parties notified of date and location of examination Opinion of examining AMS not ultimately determinative Consequently, Panels not required to disclose conclusions reached in report of re-examination to parties Brockmann v Brockmann Metal roofing Pty Ltd & Ors [2006] NSWSC 235

The Appeal Process- Fresh Evidence S328(3) allows Appeal Panel to consider fresh evidence Registrar allowing appeal to proceed on basis of fresh evidence under s327(3) does not mean Panel is required to admit it Summerfield v Registrar WCC & Anor [2006] NSWSC 515 Test - see Massie v Southern Timber and Hardware Pty Ltd [2006] NSWSC 1045 Appellant only can seek to furnish (and respondent only in reply) Markovic v Rydges Parramatta & Anor [2007] NSWSC 157

The Appeal Process- Panel’s duty of disclosure Appeal Panels are obligated to provide reasons for their decisions Campbelltown City Council v Vegan & Ors [2006] NSWCA 248 Procedural fairness does not require panel to disclose in advance proposed increase or decrease in WPI, and panel not required to disclose in advance its evaluation of a deduction for pre-existing condition Crean v Burrangong Pet Food Pty Ltd [2007] NSWSC 839

The Consolidation of Appeal Panels Prior to May 08, all Arbitrators and AMS’s undertook panel work May Arbitrators and 22 AMS’s appointed to conduct the bulk of panel work More timely, consistent decisions have resulted

Trends and Outcomes Medical appeal rate is declining MAC revocation rate is declining Timeliness of Appeal Panel decisions improving Outcomes over past 2 years:  31% of MACS confirmed  45% of MACS revoked  15% of appeals end at the gateway  9% other outcomes (eg: discontinued)

Trends and Outcomes- New Appeals

Trends and Outcomes- Appeal rate

Trends and Outcomes- MAC revocation rate

Trends and Outcomes- Timeliness of Appeal Panel decisions

Outcomes

Questions? Sian Leathem, Registrar Workers Commission of NSW