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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