Should an Insurer give consideration to a revoked Medical Assessment Certificate?
L’Estrange v Manildra Meat Company Pty Ltd [2022] NSWPIC 563 (11 October 2022)
Following a contested Hearing, the Applicant was referred to an Approved Medical Specialist (AMS) to certify the degree of whole person impairment (WPI) of injuries to his neck, back, wrists, elbows, right shoulder, right hip and both knees.
On 8 December 2020, Dr Tim Anderson, AMS, issued a Medical Assessment Certificate (MAC) in which he certified that the Applicant suffered from a combined 29% WPI as a result of the referred injuries.
The Respondent appealed the MAC pursuant to section 327 of the Workplace Injury Management Act 1998 (the 1998 Act) and a Medical Appeal Panel (MAP) revoked the MAC of Dr Anderson.
On 9 April 2021, a new MAC was issued by which the MAP certified the Applicant suffered a combined 18% WPI and an Amended Certificate of Determination was issued on 28 April 2021.
Issues for Determination
Pursuant to section 322A of the 1998 Act, only one assessment may be made of the degree of permanent impairment of an injured worker.
The Applicant sought a further medical assessment in the Commission in order to resolve the dispute regarding whether he was a “worker of high needs” and surpassed the section 39 threshold. In support of the proposition that he was a “worker of high needs”, the only evidence relied upon by the Applicant was the revoked MAC of Dr Anderson dated 8 December 2020.
The Respondent’s position was simple. It argued that section 322A of the 1998 Act precluded a further assessment of WPI.
Decision
From the outset, Member Sweeney stated it is difficult to understand the Applicant’s submission that the Commission, or the Respondent’s insurer, should accept and act on the MAC of Dr Anderson dated 18 December 2020 which was revoked by the Medical Appeal Panel on 9 April 2021. The Member stated:-
“The new certificate issued by the MAP is conclusively presumed to be correct as to the degree of permanent impairment of the Applicant as a result of an injury in accordance with s 326(1)(a) of the 1998 Act. Conversely, from 9 April 2021, the MAC of Dr Anderson ceased to have any statutory force or effect in respect of the degree of WPI as a result of the injury referred for assessment.”
The Member accepted the Applicant’s submission that a distinction can be drawn between claims for permanent impairment compensation and threshold disputes as to whether a worker is of “high needs” or of “highest needs”. However, he stated that section 322A is in wide terms and the argument raised by the Applicant had been considered and rejected by the Commission in earlier cases.
In this regard, Member Sweeney considered the decision of Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 wherein his Honour Judge Keating stated at [127]:-
“The limitation on the number of assessments in s 322A applies to ‘any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury…’ (s 322A(2)) (emphasis added). Whilst the matters referred to by Mr McManamey are certainly included as matters to which the limitation applies, the sub-section expressly applies to any further assessment.”
The Member dismissed the ARD on the basis that the Applicant was not entitled to a further assessment of permanent impairment as a result of his proven injuries. It was the new MAC issued by the MAP on 9 April 2021 which is binding and conclusive as to the degree of permanent impairment of the Applicant as a result of the injuries.
Implications
When considering threshold issues for workers who have previously been assessed for permanent impairment compensation, insurers are entitled to and should rely upon a valid Medical Assessment Certificate. The decision also confirms that once revoked, a prior Medical Assessment Certificate has no statutory force or effect in respect of the degree of whole person impairment as a result of the injury referred for assessment.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
