College of Law
Workers Compensation
Seminar
Workers Compensation Commission
Update and Outline of Medical
Assessments and Medical Appeals
Sian Leathem
Registrar, Workers Compensation Commission
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
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
2011 Client Survey
Commission’s 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.
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
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
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
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
Workers
Compensation
Commission
Update
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)
Medical Assessments
and Medical Appeals in
the Workers
Compensation
Commission
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)
Types of Disputes in the WCC
Streaming to Medical Assessment
Registered - to Teleconference
Registered - to AMS
Applications Received by Month by First Allocation
Total Registered
900
800
773
809
770
738
728
764
752
748
775
700
671
615
600
524
500
.
o
N
454
423
390
400
300
403
388
385
380
325
371
337
334
367
416
385
364
384
276
355
367
302
313
359
341
248
200
100
0
Jul-10
Aug-10
Sep-10
Oct-10
Nov-10
Dec-10
Jan-11
Feb-11
Mar-11
Apr-11
May-11
Jun-11
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
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
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)).
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
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))
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
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
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
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
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
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
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
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
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
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 Medical Appeal Process
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)
New medical appeals
MAPs Lodged (12 Month average)
Jun-11
May-11
Apr-11
Mar-11
Feb-11
Jan-11
Dec-10
Nov-10
Oct-10
Sep-10
Aug-10
Jul-10
Jun-10
May-10
Apr-10
Mar-10
Feb-10
Jan-10
Dec-09
Nov-09
Oct-09
Sep-09
Aug-09
Jul-09
Trends and Outcomes- New Appeals
New Medical Appeals
80.0
70.0
60.0
50.0
40.0
30.0
20.0
10.0
0.0
Trends and Outcomes- MAC
revocation rate
Medical decision reversal rate
12%
10%
8%
6%
4%
2%
0%
Medical decision reversal rate
Linear (Medical decision reversal rate)
Trends and Outcomes- Timeliness of
Appeal Panel decisions
Timeliness (average days)
140
120
100
80
60
40
20
0
Average time for resolution (days)
Linear (Average time for resolution (days))
Outcomes
Appeal Outcomes
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Discontinued
Confirmed
Revoked
Leave not granted
Other
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
• 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
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).
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)
Questions?
Sian Leathem, Registrar
Workers Commission of NSW
www.wcc.nsw.gov.au