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19 September 2008

From the gatekeeper to the Court of Appeal - the role of the Workers Compensation Commission

In this bulletin we review two recent Court of Appeal decisions which look at the roles of the Workers Compensation Commission (WCC) Registrar (or Registrar’s Delegate) as gatekeeper and of an Arbitrator faced with an impairment medical dispute.

Pitsonis v Registrar of the Workers Compensation Commission, 9 May 2008

The WCC Case

The applicant was a teacher. In 2002 she was assaulted by a student and suffered physical and psychiatric injuries. A claim was made for 17% WPI. The extent of impairment was disputed. The matter was referred to an Approved Medical Specialist (AMS) who assessed 7% WPI.

The applicant filed an application for leave to appeal against the Medical Assessment Certificate (MAC), relevantly on the following grounds under section 327 Workplace Injury Managment and Workers Compensation Act:

  • The assessment was made on the basis of incorrect criteria.
  • The MAC contained a demonstrable error.

The Registrar’s Delegate concluded there were no arguable grounds of appeal and the application was dismissed. The applicant appealed to the Supreme Court.

The Appeal

The applicant appealed to the Court of Appeal on several bases:

  • She alleged the MAC contained inconsistencies. For example, the AMS assessed her concentration, persistence and pace as class 2, which is a fairly moderate impairment, but also described her as pausing for 15 seconds before answering questions and being a poor historian.
  • She alleged the AMS had failed to record and consider the history given during the examination.

Relevant aspects of the Court of Appeal’s decision are as follows:

  • The criterion for a section 327 appeal against a Medical Assessment Certificate proceeding past the Registrar of the Workers Compensation Commission is not the objective existence of the ground of appeal but the opinion of the Registrar (or Delegate) concerning whether one of the grounds existed. This involves the Registrar forming the view that the ground of appeal has enough substance to warrant the appeal proceeding.
  • Factual errors made by an AMS and recorded in the MAC would not usually satisfy the incorrect criteria ground of appeal. In assessing this ground reference must be made to such matters as the tests set out in WorkCover Guides for the Evaluation of Permanent Impairment and AMA5 or a failure to apply the criteria stipulated in those documents.
  • It is arguable factual errors contained in a MAC may amount to demonstrable error. However, demonstrable error requires the appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the MAC. It may be an error of fact or law but it must be readily apparent from an examination of the MAC and the documents referred to the AMS for assessment. Claims the AMS failed to record a correct history were not demonstrable on the face of the MAC

In this case the Court concluded the applicant’s complaint about the MAC were simply cavilling at matters of clinical judgment and dismissed the appeal. The appeal failed.

So when considering an appeal against a MAC it’s essential to closely consider relevant criteria in the Guide and AMA5 and the documentary evidence before the AMS.

Haroun v Rail Corporation NSW and Ors. Court of Appeal, 18 August 2008.

The WCC Case

An applicant was injured when she fell at work injuring her legs, back, neck and right arm. Her claim for lump sum compensation came before an Arbitrator. The Arbitrator referred the claim to an AMS for assessment of the degree of permanent impairment resulting from the injuries. The referral to the AMS included a finding ‘by consent’ that the effect of the injuries continued to contribute to any impairment suffered by the applicant.

The AMS assessed 1% WPI only. This related to the right arm.

The applicant appealed against the MAC on the basis of section 327(3)(c)and (d) Workplace Injury Managment and Workers Compensation Act. That is, the assessment was based on incorrect criteria or the MAC contained demonstrable errors. The matter was referred to a Medical Appeal Panel of the Workers Compensation Commission.

The Appeal Panel said it was the Arbitrator’s function to determine whether there had been injury as claimed and the task of the AMS was to determine whether that injury gave rise to any permanent impairment. The Panel agreed with the AMS’ ultimate finding and confirmed the MAC.

The Appeal

The applicant sought judicial review to quash the Appeal Panel decision and obtain a rehearing by another Appeal Panel on the grounds there had been an error of law. The Court of Appeal held there had been no error of law. It found the Appeal Panel was entitled to treat the finding of the Arbitrator (that the effect of the injuries continued to contribute to any impairment suffered by the applicant) as irrelevant and was indeed bound to do so if it independently came to a different conclusion.

An Arbitrator may determine factual and legal issues but has no jurisdiction to decide a medical dispute. The Arbitrator’s finding that the injuries continued to contribute to impairment, made without jurisdiction , could not bind the AMS or the Appeal Panel and could not even be persuasive. A MAC which is conclusively presumed to be correct trumps any inconsistent findings by an arbitrator and such findings are neither final nor binding on the parties.

So if there is a compensable injury it’s up to an AMS to decide if permanent impairment results from that injury and not an Arbitrator.

Author: Will Murphy

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