GN 8.4 Medical assessments and appeals

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies to exempt workers

Overview

The Workers Compensation Commission (the Commission) has exclusive jurisdiction to examine, hear and determine all matters arising under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Workers Compensation 1987 (1987 Act). See Insurer guidance GN 9.2 Work Injury Damages for more information on the Commission’s role in respect of damages.

This Insurer guidance outlines the role of an Approved Medical Specialist (AMS), the medical dispute pathway, and the procedure for referral and assessment, including further assessment, reconsideration and appeals.

The Approved Medical Specialist

Historical context

Two of the key reforms to the NSW workers compensation scheme in 2001 were changes to the method of assessment of degree of permanent impairment (see Insurer guidance GN 5.7 Permanent impairment) and the introduction of the AMS as ‘final arbiters’ in medical disputes regarding the degree of permanent impairment.

Prior to the 2001 reforms, Judges of the Compensation Court had full discretion and power to determine the degree of permanent impairment of a worker when the parties were in dispute. Under the 2001 reforms, Arbitrators of the Commission replaced Judges of the Court. However, unlike the Judges that preceded them, Arbitrators do not have the power to determine the degree of permanent impairment. It is a requirement of the scheme that disputes about the degree of permanent impairment are assessed by an AMS.

The role of the Approved Medical Specialist

Approved medical specialists are appointed by the President of the Commission and are independent of workers, employers and insurers. Approved medical specialists also sit on medical appeal panels.They are experienced medical practitioners who are qualified in a range of medical specialties. They conduct medical assessments, mostly to assess the degree of permanent impairment resulting from work-related injuries. They also provide non-binding opinions about a worker’s medical condition, the need for treatment and fitness for employment.

The AMS provides an independent assessment to the Commission. They do not give advice or recommend treatment for the worker.

Powers of the Approved Medical Specialist

When assessing a medical dispute, an AMS may:

  • consult with any medical practitioner or other health care professional who is treating or has treated the worker (section 324(1)(a) of the 1998 Act)
  • call for the production of medical records (including x-rays and the results of other tests) and other information the AMS considers necessary or desirable for the purposes of assessing a medical dispute that has been referred (section 324(1)(b) of the 1998 Act), and
  • require a worker to submit him/herself for examination by the AMS (section 324(1)(c) of the 1998 Act).

If a worker fails to attend a medical examination by an AMS or in any way obstructs the examination, the worker’s rights to recover workers compensation can be suspended until the examination takes place (section 324(2) of the 1998 Act).

Disputes in the Commission

Disputes in the Commission are assigned to the most appropriate dispute resolution pathway:

  • Legal disputes pathway
  • Medical disputes pathway
  • Expedited assessments pathway
  • Damages disputes pathway
  • Other disputes.

More information on the different dispute pathways is available on the Commission website. The Commission has a range of videos that show what to expect in the dispute process including in the medical assessment process.

The role of the insurer in Commission disputes

It is important that insurers are aware of the role of the Commission and the different dispute pathways available to a worker.

Insurers are to ensure all claims management activities are consistent with SIRA’s overarching claims management principles in the Standards of practice. This requires insurers to manage claims with fairness and empathy, promote transparency and participation, and ensure decisions are made in a timely and efficient manner. Specifically, insurers are to ensure workers are afforded procedural fairness, and that claims are managed in a manner to avoid unnecessary disputes or litigation.

In the event that a dispute is brought before the Commission, the insurer should ensure appropriate and timely instructions are confirmed with legal representatives (where instructed) to help in the timely and effective resolution of disputes. Insurers should also adhere to SIRA’s expectations outlined in S.22 Insurer participation in disputes and mediations.

The medical disputes pathway

A medical dispute, defined in section 319 of the 1998 Act, is a dispute between a claimant and the person on whom a claim is made, about any of the following:

  • the worker’s condition including the worker’s prognosis, the aetiology (the cause or origin) of the condition, and the treatment proposed or provided
  • the worker’s fitness for employment
  • the degree of permanent impairment of the worker as a result of an injury
  • whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion
  • the nature and extent of loss of hearing suffered by a worker
  • whether impairment is permanent
  • whether the degree of permanent impairment of the worker is fully ascertainable.

Most disputes that go through the medical disputes pathway are about the degree of permanent impairment that has been caused by a work-related injury.

The worker’s degree of permanent impairment can be significant due to threshold requirements to access other entitlements (see Insurer guidance GN 5.7 Permanent impairment for more information).

The medical disputes pathway usually includes an assessment of the injury or condition by an AMS.

Permanent impairment disputes

Permanent impairment compensation disputes progress in the Commission in one of two ways, depending on whether liability is in issue.

If liability is in issue, the matter will be referred to an Arbitrator first. Liability issues require the application of legal principles to resolve. These are questions for an Arbitrator including, for example:

  • whether the claimant is a ‘worker’ as defined in section 4 of the 1998 Act, or
  • whether the claimant suffered an ‘injury’ as defined in section 4 of the 1987 Act, or
  • whether the employment concerned was a ‘substantial contributing factor’ to the injury as required by section 9A of the 1987 Act.

The Arbitrator will attempt to resolve the dispute by conciliation. If unable to resolve the dispute by conciliation, the matter will proceed to an arbitration hearing and the Arbitrator will determine liability.

Once the liability issue is resolved or determined in favour of a worker, and provided the parties are unable to come to an agreement regarding the degree of permanent impairment, the matter will then be referred to an AMS to provide a binding assessment regarding the degree of permanent impairment.

The AMS must accept the Arbitrator’s determination of the liability issues. The role of an AMS is to determine whether permanent impairment results from the injury as found by the Arbitrator or as agreed between the parties, and, if so, its extent. The AMS will assess the degree of permanent impairment, in respect of impairment of body parts/systems and/or disorders referred for assessment.

The AMS will certify the assessment in a Medical Assessment Certificate (MAC), which will be issued to the parties. The MAC must be in a form approved by the Registrar and, as required by section 325 of the 1998 Act:

  • set out details of the matters referred for assessment, and
  • certify the AMS assessment with respect to those matters, and
  • set out the AMS reasons for that assessment, and
  • set out the facts on which that assessment is based.

That assessment is conclusively presumed to be correct as to the following (in accordance with section 326 of the 1998 Act):

  • the degree of permanent impairment of the worker as a result of an injury
  • whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality
  • the nature and extent of loss of hearing suffered by a worker
  • whether impairment is permanent
  • whether the degree of permanent impairment is fully ascertainable.

If liability is not in issue, a permanent impairment compensation dispute will be referred directly to an AMS to assess the degree of impairment. An AMS must accept the occurrence of the injury, if it is not disputed by the employer/insurer.

Treatment and service disputes

An insurer and worker may disagree regarding proposed medical, hospital or rehabilitation treatment or service for a worker. If a dispute exists regarding proposed treatment or service, either party may apply to the Commission for resolution, although most applications are made by workers (see the Commission website for more information on the dispute process).

Section 60(5) of the 1987 Act confirms the Commission’s jurisdiction extends to ‘a dispute concerning any proposed treatment or service’. Any such dispute can be referred by the Registrar for assessment by an AMS.

An AMS is required to provide an assessment as to whether, in his/her opinion, the proposed treatment or service is ‘reasonably necessary’ (see Insurer guidance GN 6.1 Determining liability for medical and related treatment for discussion of ‘reasonably necessary’).

An assessment by an AMS in respect of treatment and services disputes is not binding on the parties.

If the dispute is not resolved between the parties following an AMS assessment, the second step is to refer the matter to an Arbitrator for determination according to the law that applies to medical, hospital and rehabilitation expenses. An Arbitrator will consider whether the proposed treatment or service comes within the scope of treatment and services under section 59 of the 1987 Act and, if so, whether the proposed treatment or service is ‘reasonably necessary’ as required by section 60(1) of the 1987 Act.

Medical disputes - procedure for referral and assessment

The procedures for the referral of medical disputes for assessment and appeal, as well as the procedures for the assessment and appeal (under Part 7 of Chapter 7 of the 1998 Act) are set out in the Workers compensation medical dispute assessment guidelines (the Medical Dispute Assessment Guidelines).

The Medical Dispute Assessment Guidelines deal with a range of practical and administrative considerations including the referral process, the assessment procedure, the MAC, and reviewing or appealing the MAC.

Lead and non-lead assessments

In the case of a complex injury where different medical assessors are required to assess different body systems, a lead assessor will be appointed to coordinate and calculate the final degree of permanent impairment as a percentage of whole person impairment (WPI) resulting from the individual assessments.

The lead assessor should be agreed between the parties. If the parties do not notify the Commission within seven days, the lead assessor will be selected by the Registrar. The AMS chosen to undertake the multiple assessments will be notified in the referral of the lead assessor and non-lead assessor(s).

Examination by the Approved Medical Specialist

The NSW workers compensation guidelines for the evaluation of permanent impairment (the Permanent Impairment Guidelines) provide for the assessment of permanent impairment under the workers compensation legislation. The applicable guidelines are those in force at the time of the assessment.

The Table of Disabilities applies when assessing permanent loss for injuries before 1 January 2002. The Table of Maims applies to injuries received before 4 pm on 30 June 1987 (see Insurer guidance GN 5.7 Permanent impairment for more information).

The Commission does not permit workers to record examinations undertaken by an AMS (clause 3.5 of the Medical Dispute Assessment Guidelines). A support person, such as a family member or friend may accompany the worker to a medical assessment if it is reasonable in the circumstances. A union representative or legal practitioner instructed to act for the worker in the Commission is not permitted to accompany a worker to a medical assessment.The support person is to conduct him/herself appropriately during the examination and the AMS has the right to ask the support person to withdraw if their behaviour interferes with the conduct of the examination.

The Registrar will appoint an interpreter if required.

The insurer must meet any reasonable costs incurred by the worker including wages, travel, maintenance and accommodation. This may include prepayment of travel and accommodation expenses. If the worker is not reasonably able to travel unescorted, this may include expenses for the worker’s escort (see section 330 of the 1998 Act).

The Medical Assessment Certificate

The AMS provides the Registrar with a completed MAC within 10 working days of the assessment. The MAC must be in the approved form and contain the required information:

  • details of the matters referred for assessment
  • the AMS’s opinion with respect to those matters
  • total amount of WPI (where applicable)
  • the facts on which that opinion is based
  • the AMS’s reasons for that opinion or diagnosis
  • in matters related to permanent impairment, correct reference to the Table of Disabilities (injuries before 1 January 2002) or to the NSW workers compensation guidelines for the evaluation of permanent impairment (injuries from 1 January 2002) is required. The Table of Maims applies to injuries received before 4 pm on 30 June 1987.

The Registrar issues the MAC to the parties. The Commission’s Practice Direction No 4 Correction of “obvious error” sets out what constitutes an obvious error in a MAC and the procedure for parties to follow to correct the obvious error.

Further assessment, reconsideration and appeal

Further assessment or reconsideration

A medical dispute may be referred to an AMS again for assessment in certain circumstances:

  • the Registrar may refer a medical assessment for further assessment under section 329 of the 1998 Act, as an alternative to an appeal against the assessment, or
  • a matter may be referred again by the request of a court or the Commission.

Section 329 (1A) of the 1998 Act provides that a matter may be referred again on one or more further occasions by the Registrar to the AMS for reconsideration.

Any certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate (section 329(2) of the 1998 Act).

Further assessment

The Supreme Court of New South Wales considered section 329 in the matter of Read v Liverpool City Council & Anor [2007] NSWSC 320.

Read v Liverpool City Council & Anor [2007] NSWSC 320

The matter concerned a worker with a 1993 injury to his right leg. In considering section 329 the Court stated ...'the intended function of section 329 is far from clear. It is a question that was not the subject of full argument. It may be that it affords a remedy which should have been pursued with the Commission by the plaintiff in lieu of the application for leave to appeal..'.

Also, it may be that section 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment

[at paras 26-27 emphasis added].

Reconsideration

Requests for reconsideration under sections 329(1A), 350(3) and 378 of the 1998 Act are dealt with in the Commission document Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998.

The power is a discretionary one and will be exercised in order to achieve the Commission's statutory objective of providing a fair dispute resolution system (section 367(1)(a) of the 1998 Act) and in a way that is consistent with accepted authority.

Regard will be had to existing common law principles applicable to reconsideration applications including fairness, public interest and the Commission’s duty to do justice between the parties according to the substantial merits of the case.

There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378 of the 1998 Act.

Example of the use of the reconsideration powers in the workers compensation system

Section 39 of the 1987 Act provides that a worker has no entitlement to weekly payments of compensation after an aggregate period of 260 weeks in respect of which a weekly payment has been paid or is payable.

This provision does not apply to a worker whose injury results in permanent impairment of more than 20 per cent. Further, section 39 does not apply to certain workers whose degree of permanent impairment is not yet fully ascertainable (see Workers Compensation Regulation 2016 Schedule 8, Part 2A).

The Commission has dealt with applications for medical assessment where the only medical dispute before the AMS is whether the degree of permanent impairment of the worker is fully ascertainable, for the purposes of the operation of section 39. The AMS assessment regarding whether the degree of permanent impairment is fully ascertainable is conclusively presumed to be correct.

As at June 2019, applications are being received by the Commission for reconsideration of the original AMS assessment in circumstances where a party has new evidence that the degree of permanent impairment is now fully ascertainable.

If satisfied that the reconsideration application should proceed, the Registrar will refer the matter to the AMS to again assess whether the degree of permanent impairment of the worker is fully ascertainable. The degree of permanent impairment will only be assessed with the consent of the worker.

Appeal

Application to Appeal

A party to a medical dispute may appeal against a medical assessment by an AMS if the matter certified in the assessment is conclusively presumed to be correct (section 327(2) of the 1998 Act). The matters that are conclusively presumed to be correct are set out in section 326(1) of the 1998 Act:

  1. the degree of permanent impairment of the worker as a result of an injury
  2. whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality
  3. the nature and extent of loss of hearing suffered by a worker
  4. whether the impairment is permanent
  5. whether the degree of permanent impairment is fully ascertainable.

All other matters addressed in a MAC are not appealable, although they may be subject to an application for reconsideration (see discussion above).

Grounds of appeal

The grounds of appeal are contained in section 327(3) of the 1998 Act:

  1. deterioration of the worker’s condition that results in an increase in the degree of permanent impairment
  2. availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against
  3. the assessment was made on the basis of incorrect criteria
  4. the MAC contains a demonstrable error.

A medical appeal application cannot proceed, regardless of the merit of an appeal, if a Certificate of Determination has been issued by the Commission, thereby bringing to an end the dispute between the parties (section 327(7) of the 1998 Act).

A medical appeal also cannot proceed if the parties have settled the claim for compensation, evidenced by a Complying Agreement under section 66A of the 1987 Act (section 327(7) of the 1998 Act).

The appeal
The Registrar’s role as ‘gatekeeper’

An appeal is made by application to the Registrar. Section 327(4) of the 1998 Act provides that a medical appeal is not to proceed through the ‘gateway’ unless the Registrar’s delegate is satisfied that, on the face of the application and any submissions made, at least one of the grounds of appeal specified in section 327(3) of the 1998 Act has been made out.

In allowing the medical appeal to proceed through the gateway, the Registrar’s delegate is not determining the final rights and entitlements of the parties. The Medical Appeal Panel is the final arbiter of the rights and entitlements of the parties to a medical appeal.

A decision of the Registrar’s delegate is subject to judicial review to the Supreme Court.

The Commission’s guidelines Appeal against medical assessment sets out the practice and procedure to be adopted by the Commission upon receipt of an application to appeal against a medical assessment made by an AMS under Part 7 of Chapter 7 of the 1998 Act.

Procedure of the Medical Appeal Panel

A Medical Appeal Panel (Appeal Panel) consists of two AMS and one arbitrator, chosen by the Registrar. If all members of the Appeal Panel cannot agree on a decision, the decision may be made by a majority (section 328(6) of the 1998 Act).

The appeal is by way of review of the original medical assessment. New evidence cannot be given on an appeal unless the evidence was not available before the medical assessment and could not reasonably have been obtained by the appellant before that medical assessment (section 328(2) and (3) of the 1998 Act).

The Appeal Panel will undertake a preliminary review of the matter. The Appeal Panel may adopt any of the following procedures in accordance with the needs of the individual case:

  • 'on the papers' review
  • further medical examination by an AMS on the appeal panel
  • assessment hearing.

The Appeal Panel can confirm the MAC issued by the AMS or revoke that MAC and issue a new certificate. The decision of a majority of the members of the Appeal Panel is the decision of the Appeal Panel. In all cases where the Appeal Panel decides to revoke the MAC and issue a new certificate, the Registrar will send the new certificate to the parties.

Decisions of a Medical Appeal Panel are subject to judicial review in the Supreme Court.

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