1. Medical Assessments and Medical Appeals in the Workers Compensation Commission Sian Leathem, Registrar

2. Content 1.Medical disputes 2.Approved Medical Specialists 3.Medical referrals 4.Examination by AMS 5.Applications to appeal a medical assessment 6.Role of the gatekeeper 7.Medical Appeal Panels 8.Trends and Outcomes 9.Further resources

3. 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)

4. Types of Disputes in the WCC

5. Streaming to Medical Assessment

6. Approved Medical Specialists Appointed by the President for a 3 year term Staged selection process includes:  Stage 1 – applicants assessed against the relevant selection criteria and classified by specific area of expertise  Stage 2 – verification by the relevant professional body  Stage 3 – recommendations by the Stakeholder Committee convened by the Occupational Health and Safety and Workers Compensation Council  Stage 4 – decision to appoint by the President 140 AMS’s across a range of specialties Variety of locations Terms of appointment / Code of Conduct

7. Medical Referrals Under s321(2) of the WIM Act, the parties may agree on an AMS or the Registrar may select Referral will be based on the ARD / Reply and or consent terms/CoD following a teleconference or con/arb Referral provided to parties by email with 7 days for comment or corrections Sent to AMS along with an evidence file

8. Medical Examination Must be conducted in accordance with the WorkCover Guides (AMA 5) Section 325 WIM Act requires an AMS to issue a Medical Assessment Certificate (“MAC”) AMS must provide reasons for assessment (s325(2)) WIM Act May decline to issue an assessment if degree of impairment is not ascertainable (s322(4)).

9. Application to Appeal a Medical Assessment Lodged via Form 10 Can be lodged by any party to a medical dispute Can appeal against any matter that is conclusively presumed to be correct WCC checks appeals for compliance with Registrar’s Guideline and WorkCover Medical Assessment Guidelines

10. Application to Appeal a Medical Assessment Opportunity to rectify if defective Timetable/directions provided (7 days to serve, 14 to reply) Referred to delegate for gatekeeper determination (s327(4))

11. What matters are certified in the MAC to be presumably correct? Section 326(1) of the 1998 Act: (a)the degree of permanent impairment of the worker as a result of an injury (b)whether any proportion of permanent impairment is due to a previous injury or pre-existing condition or abnormality (c)whether impairment is permanent (d)whether the degree of permanent impairment is fully ascertainable

12. What are the grounds of appeal? Section 327(3) of the 1998 Act (a)there is deterioration of the worker’s condition that results in an increase in the degree of permanent impairment (b) there is availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against and that could not reasonably have been obtained by the appellant before that medical assessment) (c) the assessment was made on the basis of incorrect criteria (d) the MAC contains a demonstrable error

13. When can a medical appeal be filed? 28 days after the date of issue of the MAC - if ground of appeal is for incorrect criteria and/or demonstrable error - Rewitu Pty Ltd v The Registrar of the WCC & Anor [2007] NSWSC 441 No time limit - if ground of appeal is for deterioration and/or additional relevant information

14. When can a medical appeal not be filed? If filed outside the 28-day time limit, if applicable, and there is no evidence of special circumstances –Section 327(5) of the 1998 Act If a Certificate of Determination (COD) has been issued –Section 327(7) of the 1998 Act If the medical dispute is subject to a Complying Agreement under section 66A of the Workers Compensation Act 1987 –Section 327(7) of the 1998 Act

15. What are special circumstances that allow the extension of time to file a medical appeal? Section 327(5) of the 1998 Act: Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017 –circumstances that are over and above that which is ordinary or usual Robertson v Registrar of the Workers Compensation Commission & Beny’s Joinery Pty Ltd [2008] NSWSC 918 –broader test than Aguiar –Registrar must determine the reasons for the delay, which may include error, mistake, administrative oversight

16. Role of the Gatekeeper Who is the “gatekeeper”? The Registrar and her delegates [Section 371 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”)] Solicitors of the Legal Unit Campbelltown City Council v Vegan [2004] NSWSC 1129 –oMarina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 –oBunnings Group Limited v Peter Howard Hicks & Ors [2008] NSWSC 874

17. What is the role of the “gatekeeper”? Section 327(4) of the 1998 Act: “Open the gateway” for a medical appeal –Must be satisfied that at least one ground of appeal has been made out “Decline to open the gateway” for a medical appeal –Not satisfied that at least one ground of appeal has been made out Not the final arbiter of the issues on appeal

18. Workload In 2010 - 4,379 MACs issued - 566 medical appeals lodged - 569 medical appeals finalised - 69 medical appeals rejected by the gatekeeper In 2009 - 4,833 MACs issued - 606 medical appeals lodged - 685 medial appeals finalised - 38 medical appeals rejected by the gatekeeper

19. What happens next after the Registrar is satisfied that a ground of appeal has been made out? (1) Section 328(1) of the 1998 Act: Gatekeeper constitutes a Medical Appeal Panel which consists of: –an Arbitrator, who has either a fulltime or sessional appointment, as Convenor of the Medical Appeal Panel –an AMS, whose specialty is applicable to the body part or system that has been assessed –another AMS, either of the same specialty or another specialty, in accordance with the circumstances of the medical assessment appealed against Medical appeal is by way of review but is limited to the grounds on which the appeal was made (section 328(2)). (2) Section 329 of the 1998 Act: Gatekeeper refers the matter back to the AMS or another AMS

20. 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

21. 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

22. 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

23. The Medical Appeal Process

24. Trends and Outcomes Medical appeal rate is gradually declining MAC revocation rate is declining Medical Appeal Panel decision are taking slightly longer (more re-examinations) Outcomes over past 2 years:  45% of MACS confirmed  30% of MACS revoked  15% of appeals end at the gateway  10% other outcomes (eg: discontinued)

25. Trends and Outcomes- New Appeals

26. Trends and Outcomes- MAC revocation rate

27. Trends and Outcomes- Timeliness of Appeal Panel decisions

28. Outcomes

29. RELEVANT CASES IN RELATION TO MEDICAL ASSESSMENTS AND MEDICAL APPEALS Grounds of appeal under section 327(3) of the 1998 Act Section 327(3)(a): Deterioration of the worker’s condition –Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 Section 327(3)(b): Additional relevant information –Lukacevic v Coates Hire Operations [2010] NSWSC 551 –NSW Police Force v Derek Fleming [2010] NSWSC 216 –Petrovic v BC Serv No 14 Pty Limited & Ors [2007] NSWSC 1156 –Pitsonis v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 50 –Summerfield v Registrar of the Workers Compensation Commission of NSW and Anor [2006] NSWSC 515

30. Section 327(3)(c): Assessment made using incorrect criteria –Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 Section 327(3)(d): Demonstrable error on the MAC –Cole v Wenaline Pty Limited [2010] NSWSC 78 –Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 –Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 –Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 –Treverrow v Registrar, WCCC [2008] NSWSC 632 –NSW Police Force v Derek Fleming [2010] NSWSC 216 –Bunnings Group Limited v Peter Howard Hicks & Ors [2008] NSWSC 874

31. Recent Court Decisions Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 Ojinnaka v ITW Australia Pty Ltd [2011] NSWSC 208 Maricic v The Registrar, Workers Compensation Commission & Ors [2011] NSWCA 42 CSR Limited v Jamie Leonard Smith [2011] NSWSC 68 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Date of decision: 29 August 2011).

32. Other Resources ‘On Review’ WCC Internet: -Menu Option: ‘Decisions’ http://www.wcc.nsw.gov.au/Decisions/Judicial+Review+Decisions/On+Review+- +Summary+of+Supreme+Court+and+Court+of+Appeal+Judicial+Review+Decisi ons/default.htm Suggested reading a. Registrar’s Guideline on Medical Appeals b. WorkCover Medical Assessment Guidelines (Chapter E)

33. Questions? Sian Leathem, Registrar Workers Commission of NSW www.wcc.nsw.gov.au