October 2006

Workers compensation: approved medical specialist certificates challenged in the Supreme Court

Since 2002 disputed impairment claims have been determined via approved medical specialist (AMS) assessment. An AMS certificate is conclusively presumed to be correct on the degree of impairment. There are limited appeal rights.

Appeals can occur if the worker’s impairment has worsened or important information becomes available after the AMS examination, the assessment was based on incorrect criteria or contained a demonstrable error. Appeals on incorrect criteria or demonstrable error must be filed within 28 days. Late appeals can proceed only if the Registrar of the Workers Compensation Commission (WCC) is satisfied there are special circumstances. Before an appeal panel is convened, the Registrar must be satisfied there are appeal grounds. Otherwise the appeal is dismissed.

A ruling of an appeal panel or a decision of the Registrar to dismiss an appeal cannot be challenged in the WCC. Two recent decisions of Associate Justice Malpass explore the jurisdiction of the Supreme Court in this area and review the legislative framework for the resolution of disputed AMS certificates and, in particular, the powers of the Registrar of the WCC.

Waikara v WCC Reigstrar of NSW [2005] NSWSC 954

The worker suffered injury to her back, neck and both shoulders on 22 August 2000. She commenced WCC proceedings for weekly payments, impairment lump sums and medical expenses. In awarding weekly compensation and medical expenses, the arbitrator found the worker had injured herself as alleged.

The arbitrator referred the impairment claim for AMS assessment. The AMS was not satisfied the worker had sustained any injury. He considered the worker’s pain was emotionally driven. He certified the worker had no permanent impairment. He said the worker’s symptoms were contrived and rejected other medical opinions as not establishing any objective abnormality.

The worker appealed in the WCC against the AMS certificate on the grounds of incorrect criteria and demonstrable error. The Registrar was not satisfied grounds for appeal existed and dismissed the appeal. The worker then filed a summons in the Supreme Court seeking to set aside the Registrar’s decision because it involved jurisdictional error of law or error of law on the face of the record.

Associate Justice Malpass found in favour of the worker on the basis the AMS decision contained a demonstrable error. The AMS concluded the worker had not sustained any injury and this was the basis of his finding on impairment. Associate Justice Malpass held a conclusion of no injury was not available to the AMS as injury had already been found by the arbitrator earlier in the proceedings. A finding of nil impairment in the circumstances amounted to a demonstrable error.

This case demonstrates the confusion which can arise in a dispute resolution system where there are potentially two judges; an arbitrator and an AMS. This should not occur. There can only ever be one judge presiding over a dispute; the arbitrator. It is not part of the role of an AMS to make non-medical findings of fact.

Moreover, the AMS cannot ignore facts already established. Had this AMS confined himself to assessing impairment (and refrained from discussing injury or critically analysing the unfortunate personal circumstances of the worker and attacking her credibility) there would have been considerably less scope for his certificate to be challenged.

Aguiar v WCC Registrar of NSW [2005] NSWSC 1017

Prior to AMS assessment, an arbitrator found injury on the basis of aggravation of a disease. The AMS concluded the worker had not sustained any whole person impairment as a result of the injury. The worker’s lawyers then commissioned a medical report from Dr Patrick to advise the worker on an appeal. Dr Patrick’s report was delayed on account of his illness.

When Dr Patrick’s report was received an appeal was lodged in WCC on the grounds that the AMS certificate contained a demonstrable error or was based on incorrect criteria. The appeal was filed 2 weeks after expiration of the 28 day appeal period.

The appeal application was dismissed by the Registrar’s delegate on the basis there were no appeal grounds and no special circumstances to allow an extension of time. A summons was then filed in the Supreme Court seeking orders setting aside the decision of the Registrar’s delegate on the basis of jurisdictional error.

The worker argued special circumstances existed for an extension of the appeal period. She asserted her solicitors had acted with alacrity to obtain the opinion of Dr Patrick, any delay was not her fault and arose through Dr Patrick’s temporary unavailability, the appeal application was only two weeks late, the delay created no injustice, the appeal grounds had merit and as part of its charter the WCC must do justice between the parties.

Associate Justice Malpass said the legislative intention was to frame a strict time limit for such appeals. In his view, special circumstances enabling an extension of time to file an appeal require matters which are different from the ordinary or usual. They require extraordinary or exceptional circumstances. Unless special circumstances are demonstrated the Registrar is not entitled to extend time. Whilst matters such as circumstances and length of delay, explanation, prejudice and the merits of an appeal are relevant, in order for the appeal time to be extended there needs to be evidence of extraordinary or exceptional matters so as to constitute special circumstances.

The matters raised by the worker were not special circumstances. The judge dismissed the summons, ordering the worker to pay the employer’s costs. WorkCover, who intervened in the proceedings, did not seek costs.

The Supreme Court ruling demonstrates the 28 day limit for certain AMS appeals must be adhered to. In this case, the worker’s lawyers may have been able to file an appeal in time. Dr Patrick’s evidence could still have been obtained and used. Moreover, the worker may have been able to mount respectable arguments on appeal without Dr Patrick’s report given the earlier finding of injury by the arbitrator and other medical evidence likely to have been before the Commission.