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Medical Appeals - Proving a ‘Demonstrable Error’ By Michelle Riordan | September 2008 Area of Expertise | Workers Compensation

Summary The New South Wales Court of Appeal has ruled that a demonstrable error must exist in either the face of a Medical Assessment Certificate or Referral to ground an appeal under Section 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (WIMA).

Who Does This Impact? Workers compensation insurers and workers compensation self insurers.

What Action Should Be Taken? Consider the decision and its implications before filing an Application for Appeal Against a Decision of an Approved Medical Specialist pursuant to s327 (3)(d) WIMA.

On 9 May 2008 the New South Wales Court of Appeal delivered its judgment in the matter of Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88. The Court determined that in an appeal under Section 327(3)(d) WIMA, a ‘demonstrable error’ must be proved on the face of the Medical Assessment Certificate and not by the Appellant adducing further evidence.

Factual Summary The Appellant worker was a Teacher employed by NSW Department of Education and Training. She alleged that she suffered both physical and psychological injuries as a result of an assault by a student in 2002. In anticipation of commencing proceedings for Workplace Injury Damages, the Appellant obtained as assessment of 17% WPI from a forensic psychologist, but the parties were unable to agree on quantum and a Threshold Dispute was referred to an Approved Medical Specialist (AMS) for determination. The AMS issued a Medical Assessment Certificate under Section 325 WIMA, concluding based on the worker’s history and subsequent events, including her treatment, that she had suffered 7% WPI. The AMS’ assessment was based on the criteria for assessing psychiatric impairment contained in Chapter 11 of the WorkCover Guides. The worker lodged an Application for Appeal based on Sections 327(3)(b), 327(3)(c) and 327(3)(d) WIMA. However, the Registrar’s Delegate formed the view that there were no arguable grounds of appeal and dismissed the Application for Appeal. The worker appealed to the Supreme Court of NSW, where her Summons was dismissed by Malpass AsJ. The worker then sought leave to appeal to the New South Wales Court of Appeal.

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Medical Appeals - Proving a ‘Demonstrable Error’ by Michelle Riordan

In the Court of Appeal the worker argued that the Delegate ought to have found that the submissions in the Appeal from the conclusions of the AMS foreshadowed an arguable appeal on the basis that the AMS’ assessment: 1. was made on incorrect criteria (Section 327(3)(c)) WIMA; and/or 2. had a demonstrable error (Section 327(3)(d)) WIMA. The worker argued that the AMS did not give proper effect to aspects of her history either recorded elsewhere in the Certificate or stated by her and not recorded.

Decision The Court of Appeal (Mason P, McColl JA and Bell JA agreeing) held that: 1. factual errors made by an AMS as recorded in the MAC would not usually satisfy the ‘incorrect criteria’ ground under Section 327(3)(c) WIMA; 2. the worker’s Submission alleges error in the factual data that the specialist applied to the appropriate criteria. It did not reveal that the AMS failed to address the WorkCover Guides or failed to apply the criteria stipulated therein; 3. for a MAC to have a ‘demonstrable error’ under Section 327(3)(d) WIMA, the Appellant needs to demonstrate 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 more than one that depends upon evidence that is not within Section 327(3)(a) or Section 327(3)(b) being adduced in the Appeal; and 4. the worker’s complaint is, in effect, cavilling at matters of clinical judgment. The Court granted leave to Appeal and then dismissed the Appeal with costs.

Reasons for Decision The Court affirmed that the role of the Registrar (or her Delegate) is that of a gatekeeper. In this regard, Mason P stated: ‘In Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission [2007] NSWCA 149… this Court pointed out that the criterion for the appeal proceeding past the gatekeeper was not the objective evidence of the grounds of appeal, but the opinion of the Registrar concerning whether one of those grounds existed. Campbell JA, with whose reasons in this respect Hodgson JA and Handley JA agreed, said: 74.

It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-section (3) exists. While the ground must be alleged, I doubt that it could be said that it “appears to the Registrar” that one of the grounds “exists” unless the Registrar had actually formed an opinion that it existed. …

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Medical Appeals - Proving a ‘Demonstrable Error’ by Michelle Riordan

76.

To decide that a ground of appeal “exists” is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can “exist” if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the grounds being made out. And in deciding whether the prospect of the ground being made out is “sufficiently” realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding…’

Appeal under Section 327(3)(c) – ‘Incorrect Criteria’ Mason P rejected the worker’s argument that the matters stated in the Submission revealed that the AMS failed to address the WorkCover Guides or to apply the criteria stipulated in them. He stated that it must not be overlooked that elements of clinical judgment are involved and that the Guides stated that the examples of activities set out in Chapter 11.14 are examples only. He stated: ‘39.

The Submissions filed in the Commission accepted that the specialist had addressed the assessment task by reference to the relevant chapter of the Guides. The thrust of the attack was that he nevertheless failed to give proper effect to aspects of the Applicant’s history that had been, in some cases, recorded elsewhere in the Certificate and, in others, stated by the applicant but nor recorded…’

Mason P also referred to the Court’s decision in Campbelltown City Council v Vegan (2006) 67 NSWLR 372, in which Basten JA (with whose reasons McColl JA agreed) said that ‘…while it was arguable that factual matters made by an approved medical specialist, as recorded in the Certificate, may be “demonstrable errors” within s327(3)(d), they would not usually satisfy the “incorrect criteria” ground. His Honour observed that the latter ground: “must refer to such matters as the tests set out in the Guidelines, where they are applicable”..’

Mason P agreed with the views of Basten JA in Vegan and stated: ‘43.

The manner in which the applicant framed her complaint about the Certificate in the Submissions did not amount to an assertion that the doctor had based the Certificate on “incorrect criteria”. It rose no higher than alleging errors in the factual data that the specialist applied to the appropriate criteria. The Delegate did not err in concluding that a ground of appeal referable to s 327(3)(c) did not “exist”.’

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Medical Appeals - Proving a ‘Demonstrable Error’ by Michelle Riordan

Appeal under Section 327(3)(d) – ‘Demonstrable Error’ Mason P stated: ‘48.

One thing, I think, is clear, namely that the “appeal” to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the Application afresh. I agree with the observations of Basten JA in Vegan … when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited: First, if the Appeal Panel’s powers are at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question.

49.

I am therefore driven to conclude that s327(3)(d) uses “contained” in the more intense meaning of having a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires a would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3)(a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006} NSWSC 939 at [39] (“an error which is readily apparent from an examination of the medical assessment certificate and the document (that) referred the matter to the AMS for assessment”.)

50.

This may at first blush, appear harsh, but one must avoid a mindset that regards every decision affecting rights as appealable, let alone appealable on unconstrained grounds.’

Mason P expressed the view that those grounds that were dependent upon the Appellant showing that the AMS failed to record or to record correctly things that she told him ‘…face a double difficulty’. He stated: ‘59.

…They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded on one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.

60.

I do not exclude the possibility that a Certificate might be capable of challenge by way of judicial review on the ground that there was, for example, a denial of procedural fairness. Sometimes, but only sometimes, the failure of a decision-maker to hear or address relevant factual material or arguments will ground a successful challenge upon this ground.

61.

In conclusion, the applicant’s arguments rise no higher than contentious assertions that error might be inferred within grounds (c) or (d) of s327(3) from the conclusions reached by the medical examiner when he applied the factual and diagnostic matters that he thought relevant to the task of assessing the behavioural consequences of the applicant’s permanent psychiatric disorder.’

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Medical Appeals - Proving a ‘Demonstrable Error’ by Michelle Riordan

Conclusion The decision is authority for the proposition that there must be a demonstrable error on the face of the MAC or the Referral to the AMS (i.e. where an AMS is instructed to assess impairment of incorrect parts of the body) and that an alleged demonstrable error cannot be proved by adducing additional evidence in support of the Appeal. The decision should be borne in mind by any party who is considering lodging an Application for Appeal against a Decision of an Approved Medical Specialist pursuant to Section 327(3)(c) and Section 327(3)(d) WIMA.

For more information, please contact:

Michelle Riordan Partner T: 02 8257 5738 michelle.riordan@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property

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Medical Appeals - Proving a ‘Demonstrable Error’  

The New South Wales Court of Appeal has ruled that a demonstrable error must exist in either the face of a Medical Assessment Certificate or...

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