Australia: A worker has only one shot at an AMS assessment of a workplace injury

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:

    1. assessment and a medical assessment certificate under this Part, or
    2. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions