Only one shot at an AMS assessment

In the decision of Jasbir Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 dated 3 December 2018, Deputy President Snell held that section 322A of the Workers Compensation & Workplace Injury Management Act 1998 (“the 1998 Act”), operates to restrict a worker to only one assessment of the degree of permanent impairment resulting from an injurious event. 

Ultimately, the worker was not entitled to be re-assessed by an Approved Medical Specialist (AMS), in circumstances, where he had previously been assessed by an AMS and discontinued such proceedings prior to the issuing of a certificate of determination.      

The Facts

• The worker was employed as a delivery driver with B & E Poultry Holdings Pty Ltd.

• The worker suffered a back injury in February 2013 when he lifted an object at work and liability was accepted by the insurer for such an injury.

• In 2015, the worker made a claim for lump sum compensation seeking 13% WPI (lumbar spine and scarring) as a result of the injury in February 2013.

• Liability in relation to the claim for lump sum compensation was disputed on the basis the worker had not satisfied the relevant 11% WPI threshold to establish an entitlement under section 66 of the Workers Compensation Act 1987 (“the 1987 Act”).

• In 2016, the worker instigated proceedings in the Commission and he was referred to an AMS to determine the correct quantification of his WPI.

• The AMS examined the worker and issued a medical assessment certificate (“MAC”) in which the worker was assessed at 14% WPI (lumbar spine and scarring) as a result of the injury in February 2013.

• Prior to the Commission being in a position to issue a certificate of determination, the worker decided to discontinue such proceedings.

• In 2018, the worker made a “fresh” claim for lump sum compensation seeking 16% WPI (lumbar spine and scarring) as a result of injury in February 2013; however he relied on a new report and a higher assessment from a different IME specialist.  

• In responding to the “fresh” claim, the insurer conveyed an offer to the tune of 14% WPI in accordance with the MAC issued in 2016 in the previous proceedings. The insurer relied upon section 66(1A) of the 1987 Act and section 322A of the 1998 Act to assert that the worker was bound by the 2016 MAC; and he was not entitled to bring a “fresh” claim for lump sum compensation and was not entitled to be re-assessed by an AMS.

• In 2018, the worker instigated proceedings in the Commission, which were the subject of a contested arbitration hearing.

Arbitrator Decision

The worker’s main arguments were:

• He was entitled to discontinue his workers compensation claim and recommence at any time without penalty under the Workers Compensation Commission Rules.

• Until the Commission issued a certificate of determination a dispute was not considered to have been determined.

• The binding nature of a MAC only applied in relation to proceedings in which the MAC had been issued and such proceedings had been determined by way of COD.

• The worker was entitled to recommence proceedings and to be re-assessed by an AMS.

The insurer’s main arguments were:

• The worker should not be entitled to recommence a discontinued claim in circumstances where a MAC had already been issued.

• The purpose of section 66(1A) was to strictly limit an injured worker to one claim for lump sum compensation resulting from an injurious event; and this only applied to a claim for lump sum compensation made after 19 June 2012.

• In relation to the meaning of “claim”, this required only a valid claim to have been made as opposed to a claim which had been determined.

The arbitrator made findings as follows:

• The worker was seeking referral for AMS assessment in relation to the same claim which had been the subject of a prior MAC in 2016.

• The approach of the worker was contrary to the provisions of section 66(1A) of the 1987 Act and section 322A of the 1998 Act; which provide as follows:

66   Entitlement to compensation for permanent impairment

(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

322A   One assessment only of degree of permanent impairment

(1)  Only one assessment may be made of the degree of permanent impairment of an injured worker.

(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

(2)  The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).

(3)  Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of:

           (a)  assessment and a medical assessment certificate under this Part, or

           (b)  a determination by the Commission under Part 4.

• The worker was restricted to only one claim for lump sum compensation and only one permanent impairment assessment in relation to the injurious event; and that the MAC issued in 2016 represented the one assessment and one MAC for the February 2013 injury.

Deputy President Decision  

The Deputy President made findings as follows:

• It was acknowledged a worker has procedural opportunity under the Rules to discontinue proceedings at any time before a COD is issued.

• He was not persuaded the worker had established an entitlement to proceed with the fresh claim for lump sum compensation.

• The worker was bound by the terms of section 66(1A) of the 1987 Act and, in absence of a claim made before 19 June 2012, the claim for lump sum compensation is the only claim which may be made by him in respect of the subject injury in February 2013.

• The worker was equally bound by the terms of section 322A of the 1998 Act to the effect the 2016 MAC is the only assessment of the degree of permanent impairment in respect of the subject injury in February 2013.

• The word “claim” is not a claim that has been finally determined; but, rather, it is a claim that has been made in accordance with the requirements in sections 260 and 261 of the 1998 Act (i.e. a valid claim).

• Ultimately, the Deputy President did not accept, on a proper construction of the applicable legislation to the worker’s circumstances, he was entitled to make a new claim and obtain a new MAC in a scenario whereby the worker had already made a claim and decided to discontinue after a MAC had been issued in relation to the injury on which the claim was made. By allowing the worker to do so would potentially have the effect of avoiding the application of section 322A of the 1998 Act; and result in situations whereby a dissatisfied worker simply discontinues any proceedings before a COD is issued and then obtains a higher WPI assessment from a medico-legal doctor and amends the claim and then repeats such a process on multiple occasions.  

Take home messages

• A “claim” in the context of lump sum compensation does not equate to a claim which has been determined; and to be a “claim” in this context means a claim which satisfies the requirements of a valid claim as outlined in sections 260 and 261 of the 1998 Act.

• The application of the provisions in section 322A of the 1998 Act mean any MAC issued in connection with a permanent impairment assessment is binding in respect of current and future medical disputes in respect of permanent impairment; and an injured worker is entitled to only one permanent impairment assessment as a result of a subject work injury.

Author: Peter Lichaa and Clemance Semaan