Power of the arbitrator to determine a claim without referral to an AMS.
Thompson v Bernipave Pty Ltd [2020] NSWWCC 169
Since the 2018 amendments to the Workers Compensation Act 1987 (NSW), Arbitrators have had the power to determine a claim without first referring the matter to an Approved Medical Specialist (AMS).
Since the 2018 amendments to the Workers Compensation Act 1987 (NSW), Arbitrators have had the power to determine a claim without first referring the matter to an Approved Medical Specialist (AMS). This is becoming more relevant due to cancellations of medical examinations as a result of the COVID-19 pandemic. In this case, an AMS assessment was cancelled, and Arbitrator Bamber proceeded to determine the matter based solely upon the Applicant’s medical evidence.
Material facts
Mr Thompson (‘the Applicant’) was employed by Bernipave Pty Ltd (‘the Respondent’) as a Truck Driver. He suffered an injury in the form of bilateral inguinal hernias while performing his work.
The Applicant made a claim for lump sum compensation. The Respondent did not respond to the claim for lump sum compensation or obtain a competing assessment of WPI. Ultimately the Applicant filed an Application to Resolve a Dispute in the Workers Compensation Commission. There was no issue as to liability, and the Arbitrator referred the Applicant for assessment by an AMS. The assessment had to be cancelled due to the COVID-19 pandemic.
The matter was scheduled for teleconference, with the key issue for determination being whether Arbitrator Bamber should determine the claim without the Applicant first being assessed by an AMS.
Submissions
The Respondent submitted that the matter should be referred to an AMS rather than being determined by the Arbitrator. The Respondent noted that prior to the ARD being filed, there had been a conversation between the solicitors in which it was agreed that the matter was likely to be referred to an AMS, and the Respondent filed a Reply on that basis without taking steps to arrange a medical examination. The Respondent made a number of further submissions in support of the contention that the matter should be referred to an AMS. These were related to possible complexities or inconsistencies in the medical evidence and in respect of the WPI assessment.
The Applicant provided a brief response to the complaints in respect of the medical evidence, and otherwise asserted that the Respondent’s insurer should follow the model litigant policy; where it did not respond to the claim twice it should not take a position that causes further delay to determination.
Findings and reasoning
Arbitrator Bamber referred to Section 65(3) which had once provided that if there was a dispute about the degree of permanent impairment of an injured worker, the Commission could not award permanent impairment compensation unless the degree of permanent impairment had been assessed by an AMS. Arbitrator Bamber observed that that Section had been repealed in 2018, and she noted that according to the transitional provisions, amendments made by the 2018 Act extend to injuries received and claims made before the commencement of the amendment. The amended Section was therefore applicable in this case.
Arbitrator Bamber then considered the evidence that the Applicant had gathered in support of his claim. She referred to the reports of the Applicant’s medical examiner, noting evidence that the examiner had taken care with his assessment. She concluded that the examiner had taken a considered approach and had been mindful of the relevant Guidelines for assessment.
Arbitrator Bamber concluded that this was an appropriate case for an Arbitrator to determine. She noted that the Respondent’s insurer had not complied with its obligations to determine the matter. She accepted the Applicant’s submission in respect of the model litigant policy and also found that it would be wasteful of costs and cause undue delay for the matter to await an AMS assessment. However, she expressed that these were not the main reasons why she had concluded that this was an appropriate case for an Arbitrator to determine.
Arbitrator Bamber indicated that the reason that she found this to be an appropriate matter to determine went to the substantive merits of the claim. She referred with approval to the report of the Applicant’s medical examiner, who she said had applied the correct criteria and not demonstrated any error. Arbitrator Bamber noted that the IME had made similar findings at two assessments and he had explained how he had arrived at his assessment. Arbitrator Bamber accepted the medical examiner’s opinion for those reasons. Arbitrator Bamber also accepted the evidence provided by the Applicant, whom she described as a ‘witness of truth’. She concluded that there was no basis for the Respondent to argue that there was a medical dispute that required determination by an AMS. Accordingly, she determined the claim in favour of the Applicant, by ordering that the Respondent pay lump sum compensation consistent with the Applicant’s medical evidence.
Implications
Since the 2018 amendments to the 1987 Act, Arbitrators have had the power to determine a matter without first referring the Applicant for assessment by an AMS. In this case, Arbitrator Bamber accepted the Applicant’s medical evidence as well as his statement. She also accepted the Applicant’s contention that the model litigant policy should operate to prevent further delays in determination where the claim had not been determined within the required timeframe. Parties should be aware, particularly now that certain medical examinations have been cancelled due to COVID-19, that an Arbitrator may exercise their power to determine a claim without first referring the matter to an AMS. Where the Respondent has not obtained competing medical evidence, this may result in the Arbitrator accepting the worker’s unchallenged medical assessment and awarding lump sum compensation as claimed.
Should you have any questions about a particular workers compensation matter, please phone our workers compensation team on 4929 9333 or 8297 5900.
