Workers Given New Hope – Opening The Door For Further Medical Assessment To Overcome Thresholds
Published on December 19, 2019 by Aleisha Nair
Injured workers who have had their ‘one claim’ for lump sum benefits before an Approved Medical Specialist (‘AMS’) are now able to return to the Workers Compensation Commission for a chance at a higher impairment assessment.
While the worker would not be able to bring another claim for lump sum benefits (i.e. Section 66 payment), there is now a mechanism in place to allow workers to return to the Commission to and see if their condition has deteriorated sufficiently to overcome the thresholds imposed by Sections 39 or 151H of the Workers Compensation Act 1987 (‘the 1987 Act’).
This has wide and significant implications for many workers who have been assessed for impairment since 2012, but whose condition may have deteriorated substantially in the intervening years.
Workers whose assessments seemed to have been ‘locked in’ below the 15% or 21% thresholds have been given new hope in Galea v Colourwise Nursery (NSW) Pty Ltd  NSW WCC 362 (12 November 2019) (“Galea”).
Relevant legislative background
Changes to the Workers Compensation Scheme in 2012 left open some level of uncertainty as to whether or not a further assessment with an AMS can be undertaken to determine threshold issues such as Section 39 disputes or work injury damages claims.
The changes included the introduction of Section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), setting an apparent limit of “only one assessment of the degree of permanent impairment of an injured worker” (emphasis added). The one assessment would produce a single binding Medical Assessment Certificate.
Subsection 2 of Section 322A states that the Medical Assessment Certificate 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 liability for compensation or a claim for work injury damages)”.
Strengthening the view that the changes meant to curb the bringing of multiple claims, Section 66(1A) limited workers to bringing only one claim for permanent impairment compensation in respect of the permanent impairment that resulted from a work injury.
A strict reading of Section 322A(2), in conjunction with Section 66(1A), suggested that a Medical Assessment Certificate is binding for all purposes relating to the degree of permanent impairment of the worker, including the determination of threshold issues such as Section 39 or Work Injury Damages. This reading had found support in the Commission where His Honour President Keating held, in Merchant v Shoalhaven City Council  NSWWCCPD 13, that s 322A(2) extended to an assessment of whether an injured worker was ‘seriously injured’ within the meaning of s 32A of the 1987 Act.
Practical Effect and (Un)intended Consequences
A worker assessed in the Commission with an impairment of 14% permanent impairment was, to all intents and purposes, ‘locked in’ below the 15% work injury damages threshold.
The practical effect on claims management was outsized – a 1% WPI difference in assessment meant, to the injured worker, not being able to access work injury damages and potentially large sums of compensation.
The consequence of that was to limit the bringing of claims where workers, on their own assessments, were close to the ‘threshold’ points (i.e. 14% WPI claims, or 20% WPI claims where workers sought the comfort of ‘life time medical rights’ accruing only at 21% WPI and above).
The flow on effect has been a disturbance of claims management at the ‘threshold points’, where lawyers are reluctant to advise clients to proceed with claims when they are:
- Near but beneath a threshold point;
- Likely to deteriorate (based on common experience); and/or;
- Have been told they will need further surgery with near certainty (such as in meniscal repairs, joint replacements, or disc surgeries where adjacent levels are at risk of needing surgery).
The unintended consequence of these changes has been to create bottlenecking around the threshold points, as lawyers must carefully navigate the risk of ‘locking in’ an impairment too low to accrue rights to worthy injured workers, weighed against the reasonable entitlement of those workers to access compensation for their injuries.
Galea v Colourwise Nursery (NSW) Pty Ltd  NSW WCC 362
Arbitrator Harris, 12 November 2019
In Galea the worker was awarded 11% whole person impairment in relation to her right and left upper extremities arising from an injury on 17 October 2014 (deemed) pursuant to a Medical Assessment Certificate dated 19 January 2019, and Certificate of Determination dated 25 January 2017.
Ms Galea underwent surgery to her left shoulder on 28 February 2017, and made a miscellaneous application to rescind the Certificate of Determination under Section 350(3) of the WIM Act 1998, with a view to appealing against the Medical Assessment Certificate pursuant to Section 327(3)(a) and (b) of the WIM Act 1998 based on a “deterioration”.
Given the limits of Section 66(1A), the worker agreed she was not entitled to bring a further claim under Section 66 of the 1987 Act (i.e. for lump sum compensation), however, requested a concession that she met the relevant threshold for either a work injury damages claim or Section 39.
Arbitrator Harris concluded:
- The Applicant has an entitlement to appeal the Medical Assessment Certificate for the purposes of establishing a threshold, for the following reasons:
- The one medical assessment certificate is used for all purposes (s 322A(2));
- The Applicant’s statutory right to appeal the medical assessment certificate pursuant to s327 is protected by s 322A(4) of the 1987 Act;
- There is no time limit to appeal a medical assessment certificate if the grounds of appeal are based on s 327(a) and/or (b);
- The Applicant’s entitlement to appeal is restricted to the matters referred for assessment. Those matters were the various body parts assessed by the AMS;
- Despite the fact that the Applicant had not made a threshold claim when the Medical Assessment Certificate was issued, the Medical Assessment Certificate determined that issue. This is consistent with the clear statutory language which provides for an appeal against a medical assessment certificate. The Medical Assessment Certificate can therefore be appealed for the purposes of any threshold issue.
- The Applicant’s prospects of meeting the thresholds for Work Injury Damages and/or Section 39 are relevant to determining whether the Certificate of Determination should be set aside;
- Even though future surgery was contemplated at the time of the original Certificate of Determination, that does not prevent the Applicant from lodging an appeal. It is not relevant whether the Applicant knew there was a prospect of deterioration in the future, and chose to bring her Section 66 claim anyway; and
- The Certificate of Determination should be set aside, on the condition that the s 66 claim has been resolved and cannot be re-litigated.
Commentary & practical effect of decision
The High Court in ADCO Constructions Pty Ltd v Goudappel described portions of the 2012 amendments as having a “non-beneficial operation”. This was specifically in relation to the entitlement to make only one claim pursuant to Section 66(1A) of the 1987 Act.
Arbitrator Harris accepted that Section 322A had a similar purpose to those discussed in Goudappel, and was “not a beneficial provision”
In reading Subsection 4 of Section 322A, it is at least clear that parliament did not intend for the ‘one assessment’ limit to restrict an injured worker’s right of appeal pursuant to Section 327 of the 1998 Act.
There was however some ambiguity as to the practical use of s 327(3)(a), as an appeal based on a deterioration could not realistically be brought before a Certificate of Determination was issued.
Arbitrator Harris has now addressed this issue, and considered the above in contrast to an appeal pursuant to s 327(c) and/or (d), where any application must be filed within 28 days of the Medical Assessment Certificate. He stated “the finality of litigation should be considered in the context that s 327(3)(a) does not specify a time limit in which to file an appeal based on deterioration”.
Practitioners should consider the following from the Decision:
- This decision does not affect the operation of Section 66(1A) or Goudappel. The Applicant cannot claim a further entitlement under Section 66;
- The Applicant cannot introduce new body parts (such as Ms Galea’s neck) in their appeal. The appeal is limited to body parts that were the subject of assessment in the original Medical Assessment Certificate.
- It is as yet unclear whether body part is synonymous with ‘body system’ as used in the AMA5, such that, for example, the “cervical spine” is treated as the assessable body part and that additional disc levels of the cervical spine could be added. This will need to be tested.
- The strength of the Applicant’s claim is relevant to the exercise of discretion to set aside the Certificate of Determination. The Applicant should have real prospects of establishing an impairment of at least 15%.
- It is not relevant whether, at the time of the original Certificate of Determination, the Applicant knew there were real prospects of deterioration in the future (e.g. if future surgery was contemplated).
- Even though the previous Certificate of Determination may be revoked to allow the appeal, that does not revoke the orders in relation to the payment of Section 66 compensation.
To date, injured workers have been concerned about forgoing their future entitlement by taking their “one chance” at an AMS assessment (as limited by Section 322A), and bringing a Section 66 claim potentially prematurely.
This Decision opens up the doors for injured workers who have already had their one AMS assessment, and fell below the 15% or 21% thresholds.
Workers remain ‘bound’ to their initial lump sum assessment for the purposes of impairment, and so caution should still be exercised when bringing the first claim for impairment – but many workers may now be eligible for a further assessment, and the additional rights and entitlements that deservedly accrue to them.