"Court of Appeal decides grounds on which the appeal panel of the NSW Workers Compensation Commission can revoke a Medical Assessment Certificate"
Author: Samantha Hubbard   
Judgment Date: 30 May 2008
Jurisdiction: New South Wales Court of Appeal
In Brief
  • The New South Wales Court of Appeal has decided that the Appeal Panel of the Workers Compensation Commission can revoke a Medical Assessment Certificate on any ground found in s.327(3) of the Workplace Injury Management Act 1998, regardless of the grounds on which the appellant (worker) relied.
  • However, the parties must be afforded procedural fairness and be notified prior to a decision being made that the Appeal Panel intends to rely upon a fresh ground of appeal.
Background

Workers Compensation Commission Proceedings

  • The appellant was employed as a painter who suffered an injury when he fell off a ladder at work on 20 September 2002.  His employer was not insured so he made a claim for workers compensation against the WorkCover Authority of NSW (WorkCover”).  WorkCover accepted liability but a dispute arose between the parties as to the level of the appellant’s whole person impairment.
  • Proceedings were commenced in the Workers Compensation Commission (“the Commission”) which resulted in the matter being referred to an Approved Medical Specialist (“AMS”).  The AMS issued a Medical Assessment Certificate (MAC) assessing 5% whole person impairment in relation to the appellant’s neck injury. 

Appeal Panel 

  • WorkCover appealed against the MAC on the basis that fresh evidence was available (s.327(3)(a)), that the MAC was based on incorrect criteria (s.327(3)(c)) and that it contained a demonstrable error (s.327(3)(d)). 
  • WorkCover alleged that not all the evidence was taken into account and that the date of injury was misrecorded.   The appeal panel did not accept these grounds. 
  • However, the appeal panel found that the MAC should still be revoked for being based on incorrect criteria, because the AMS had allegedly misinterpreted the AMA Guides to the Evaluation of Permanent Impairment, 5th edition (“the AMA Guides”).  This was not a ground upon which Workcover had originally relied.
  • The appeal panel did not inform the parties that it intended to rely upon this new ground prior to its decision to revoke the MAC.

Supreme Court Proceedings   

  • The appellant (worker) challenged the appeal panel’s decision in the Supreme Court of NSW.  The appellant submitted that the AMA Guides had been properly followed by the AMS and that there had been a failure to comply with procedure. 
  • Malpass AsJ dismissed the appeal on the basis that he could find no error in the appeal panel’s conclusion that the AMA Guides had been misinterpreted.
Court of Appeal Proceedings

Grounds of Appeal

  • The appellant (worker) challenged the decision of Malpass AsJ in the Supreme Court of NSW on the basis that:
  1. “The primary judge ought to have found that the appeal panel erred in law and thus in the exercise of its jurisdiction in conducting a full review after rejecting the errors the subject of the Registrar’s grant of leave. ”
  2. “That the primary judge erred in holding that the appeal panel applied the WorkCover Guidelines”.

Submissions

  • The appellant submitted that the appeal panel had erred in law and exceeded its jurisdiction by failing to limit its review to the errors the subject of the registrar’s grant of leave.  It was also submitted that the primary judge erred in failing to find that the appeal panel had misinterpreted the AMA Guides.
  • The respondent submitted that an appeal panel could conduct a fresh and full review of the matter once it had been referred by the registrar, and that, accordingly, it could consider grounds which had not been specifically pleaded by the appellant.  The respondent, in relation to the second argument, submitted that the primary judge had correctly concluded that the appeal panel had identified a demonstrable error in the MAC. 
Court of Appeal Findings
  • McColl JA, with whom Mason P and Giles JA agreed, found that the appeal panel has the power to conduct an appeal by way of review, either involving a hearing in de novo or a re‑hearing.  This decision was based on the objectives of the workers compensation legislature, the decision in the matter of Vegan and the requirement that the appeal panel include two medical specialists and an arbitrator. 
  • It was decided that an appeal panel can consider grounds of appeal not the subject of the Registrar’s leave, as long as it comes within the head of another ground of appeal set out in s.327(3) of the legislation.
  • However, it was held that the appeal panel can only consider other grounds of appeal if the parties are accorded procedural fairness, including having the opportunity to be heard and deal with material which can be characterised as having a credible, relevant, significant or adverse effect on the interests of that party. 
  • McColl JA held that the parties had a right to procedural fairness, considering the objectives of the legislation in providing injured workers and their dependents compensation, delivering the objectives efficiently and effectively and providing a fair and cost effective system for the resolution of disputes. 
  • Accordingly, it was held that:

“ While it was open to the appeal panel to depart from the grounds of appeal the respondent had identified, it could only do so if it notified the parties and gave them an opportunity to be heard.   It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty. ”

  • It was decided that the appeal to the appeal panel should be reheard.
  • McColl JA, with whom Mason P agreed, also held that Malpass AsJ erred in concluding that the appeal panel had correctly interpreted the AMA Guides.  However, it was noted that it was not for the primary judge to make his own finding in relation to whether the MAC complied with the AMA Guides.
Implications
  • This decision means that an appeal panel can revoke a MAC on any of the grounds listed in s 327(3) despite the Registrar only granting leave in relation to a particular ground, provided that parties are notified first.
  • This decision also lends support to the view that symptoms listed in the AMA Guides as indicating a particular category of impairment are neither prescriptive nor exhaustive.

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