College of Law Workers Compensation Seminar Workers Compensation Commission Update and Outline of Medical Assessments and Medical Appeals

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College of LawWorkers Compensation
SeminarWorkers Compensation Commission Update
and Outline of Medical Assessments and Medical
Appeals

• Sian Leathem
• Registrar, Workers Compensation Commission

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Content

• Commission Update
• Legislative instruments
• Client Survey
• Evaluation of changes
• Medical Assessments and Appeals
• Medical disputes and case management
• Approved Medical Specialists
• Referals
• Examinations
• Appeals

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Legislative Instruments

• Workers Compensation Commission Rules 2011
  operational 1 July 2011.
• Workers Compensation Legislation Amendment Act
  2010 - amends both the 1987 and the 1998Acts
  operational 1 Feb 2011.
• Workers Compensation Regulation 2010
• - operational 1 Feb 2011

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2011 Client Survey

• Commissions 3rd survey, with previous surveys
  conducted in 2004 and 2008.
• Engaged New Focus consultants to undertake
  survey.
• Aims of the research
•  
• Identify the Commission's strengths and
  opportunities for service improvements
• Understand user expectations and experiences
  regarding Commission services
• Measure satisfaction with these services, and
• Get feedback on information provision, sources of
  communication and access and equity issues.

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• Client Survey
• Increased satisfaction since 2008 amongst legal
  representatives, workers and insurers
• Similar satisfaction levels among workers to 2008
• Substantial increase (from 54 to 80 per cent) in
  satisfaction of legal representatives.
• Key drivers for satisfaction with
  teleconferences
• Being neutral and listening to both sides
• Understanding workers compensation law
• Attempting to resolve the dispute

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• Client Survey
• Key drivers for satisfaction with con/arbs
• Understanding the issues in dispute
• Providing a fair and impartial decision
• Understanding workers compensation law
• Areas for further attention
• More effective information and communication
  with insurers / employers
• Suitability of regional venues
• Regular checking of whether the worker
  understands what is happening

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• PwC Evaluation
• Range of positive findings about changes to
  Arbitral services, including
• Arbitral decisions have become more durable and
  the resolution of matters more effective
• Consistency of outcomes is relatively high
• Average time to resolve matters has improved,
  with a small sacrifice in timeliness between the
  3 and 6 month bands
• Areas for further attention
• More effective information and communication
  with insurers / employers
• Suitability of regional venues
• Regular checking of whether the worker
  understands what is happening

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PwC Evaluation Areas for further
attention Suitability of conference rooms on
level 21 Regional venues for con/arbs Improved
website Future action Further Arbitrator
recruitment Consideration of accommodation
options Continued review of regional
venues
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Workers Compensation CommissionUpdate
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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)

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Medical Assessments and Medical Appeals in the
Workers Compensation Commission
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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)

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Types of Disputes in the WCC
   
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Streaming to Medical Assessment
   
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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 AMSs across a range of specialties
• Variety of locations
• Terms of appointment / Code of Conduct

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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

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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)).

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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
  Registrars Guideline and WorkCover Medical
  Assessment Guidelines

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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))

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• 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

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• What are the grounds of appeal?
• Section 327(3) of the 1998 Act
• there is deterioration of the workers 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

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• 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
  

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• 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

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• 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 Benys 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

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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
• o Marina Pitsonis v Registrar of the Workers
  Compensation Commission Anor 2008 NSWCA 88
• o Bunnings Group Limited v Peter Howard Hicks
  Ors 2008 NSWSC 874

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• 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

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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

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• 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

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The Appeal Process- Further Medical Examination

• Power to conduct further medical examination
  arises from AMSs 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

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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

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The Appeal Process- Panels 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

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The Medical Appeal Process
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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)

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Trends and Outcomes- New Appeals
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Trends and Outcomes- MAC revocation rate
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Trends and Outcomes- Timeliness of Appeal Panel
decisions
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Outcomes
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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 workers
  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

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• 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

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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).

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Other Resources

• On Review
• WCC Internet
• Menu Option Decisions
• http//www.wcc.nsw.gov.au/Decisions/JudicialRevi
  ewDecisions/OnReview-SummaryofSupremeCourt
  andCourtofAppealJudicialReviewDecisions/defa
  ult.htm
• Suggested reading
• a. Registrars Guideline on Medical Appeals
• b. WorkCover Medical Assessment Guidelines
  (Chapter E)

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Questions?

• Sian Leathem, Registrar
• Workers Commission of NSW
• www.wcc.nsw.gov.au