Transcript Document

Medical Appeals in the
Workers
Compensation
Commission
Sian Leathem, Registrar
Introduction
1.
2.
3.
4.
Disputes in the WCC
Medical Disputes
The Appeal Process
The Consolidation of Appeal
Panels
5. Trends and Outcomes in Medical
Assessment
Types of Disputes in the WCC
Permanent Impairment - Degree
Permanent Impairment - Liability
Pain and suffering
Domestic Assistance
Threshold for Work Injury Damage
Weekly benefits
Medical Expenses
Workplace Injury Management
Death
Property Damage
Issues in Dispute
0.4%
0.0%
0.0%
33.0%
45.5%
37.4%
32.1%
10.3%
0.6%
Medical Disputes
• Liability for Permanent Impairment lump sum
compensation determined by an Arbitrator
• Disputes concerning the degree of permanent
impairment as a result of an injury are “medical disputes”
(s319 WIM Act)
• Must be determined by an Approved Medical Specialist
(AMS)
• Referred by the Registrar (ss321(3) & (4) WIM Act)
• Parties provided with a copy of the referral in all matters
Medical Assessment
• Powers of an AMS prescribed in s324 WIM Act
• Section 325 WIM Act requires an AMS to issue a
Medical Assessment Certificate (“MAC”)
• AMS must provide reasons for assessment
(s325(2)) WIM Act
The Appeal Process- Lodging an
Appeal
• Suggested reading
a. Registrar’s Guideline on Medical Appeals
b. WorkCover Medical Assessment Guidelines (Chapter
E)
• Lodged via Form 10
• WCC checks appeals for compliance with Registrar’s
Guideline and WorkCover Medical Assessment
Guidelines
• Opportunity to rectify if defective
• Timetable/directions provided (7 days to serve, 14 to
reply)
• Referred to delegate for s327(4) determination
The Appeal Process- 1st Stage
The Appeal Process- Jurisdiction
• S327(1) provides for appeal against medical
assessment
• A party can only appeal against matters
conclusively presumed to be correct (s327(2))
• Matters conclusively presumed to be correct are
defined in s326(1) WIM Act (degree of
permanent impairment, whether impairment due
to pre-existing condition, nature and extent of
hearing loss, whether impairment permanent,
whether impairment fully ascertainable)
The Appeal Process- Grounds of
Appeal
• S327(3) defines the grounds:
a. Deterioration that results in an increase in
permanent impairment
b. Additional relevant information
c. Application of incorrect Criteria
d. Demonstrable error (see Bunnings Group
Limited v Peter Howard HICKS & Ors [2008]
NSWSC 874 for a useful description of
“demonstrable error”)
The Appeal Process- Time limit
• 28 day limit for grounds s327(3)(c) incorrect
criteria and (d) demonstrable error
• Time is calculated in accordance with Rule
8.1(6) of the WCC Rules Rewitu Pty Ltd v The
Registrar of the Workers Compensation
Commission of New South Wales & Anor
[2007] NSWSC 441
The Appeal Process- “Special
Circumstances”
• Appeal under grounds s327(3) (c) and/or (d) outside 28
day limit- not to proceed unless special circumstances
justify an increase in the period for an appeal
• Submissions must address “special circumstances”
• See Aguiar v Registrar to the Workers Compensation
Commission of NSW & Ors [2005] NSWSC 101 and
Robertson v Registrar of the Workers Compensation
Commission & Beny’s Joinery Pty Ltd [2008] NSWSC
918
for interpretation of “special circumstances”
The Appeal Process- the
“Gateway” Determination
• S327(4)- appeal not to proceed unless
Registrar satisfied on face of submissions
and application, at least one ground of
appeal is made out
• Registrar is “gatekeeper” of appeals
Bunnings Group Limited v Peter
Howard HICKS & Ors [2008] NSWSC
874
The Appeal Process- 2nd stageReferral to Appeal Panel
The Appeal Process- Power and
Procedures of Appeal Panels
• S328(1) – Panel constituted by two AMS’s and an Arbitrator
• Powers of review - Siddik v WorkCover Authority of NSW [2008]
NSWCA 116
• Procedures- Guideline 45 WorkCover Medical Assessment
Guidelines
• Preliminary review required in all matters
• Panel may finalise “on the papers” at preliminary review, hold an
assessment hearing or conduct a further medical examination
• Whether appeal determined “on the papers” is a discretionary matter
for Appeal Panel (Pateman v Peninsula Village Limited trading
as Peninsula Village Retirement Centre and Ors [2007] NSWSC
586)
The Appeal Process- Assessment
Hearings
• Panel may hold an assessment hearing
• Conducted on Commission premises
• Section 328 WIM Act does not mandate an assessment
hearing Estate of Heinrich Christian Joseph
Brockmann v Brockmann Metal Roofing Pty Limited
& Ors [2006] NSWSC 235
• In many matters, appeal may be determined “on the
papers”
• Consequently assessment hearings are rare
• Panels must consider a request for an assessment
hearing Dar v State Transit Authority of NSW [2007]
NSWSC 260
The Appeal Process- Further
Medical Examination
• Power to conduct further medical examination arises
from AMS’s powers under s324 of WIM Act (s324(3))
• Further medical examination is not mandatory and is a
matter for the Appeal Panel Bojko v ICM Property
Service Pty Ltd & 2 Ors [2008] NSWSC 907
• Parties notified of date and location of examination
• Opinion of examining AMS not ultimately determinative
• Consequently, Panels not required to disclose
conclusions reached in report of re-examination to
parties Brockmann v Brockmann Metal roofing Pty
Ltd & Ors [2006] NSWSC 235
The Appeal Process- Fresh
Evidence
• S328(3) allows Appeal Panel to consider fresh evidence
• Registrar allowing appeal to proceed on basis of fresh
evidence under s327(3) does not mean Panel is required
to admit it Summerfield v Registrar WCC & Anor
[2006] NSWSC 515
• Test - see Massie v Southern Timber and Hardware
Pty Ltd [2006] NSWSC 1045
• Appellant only can seek to furnish (and respondent only
in reply) Markovic v Rydges Parramatta & Anor [2007]
NSWSC 157
The Appeal Process- Panel’s duty
of disclosure
• Appeal Panels are obligated to provide reasons
for their decisions Campbelltown City Council
v Vegan & Ors [2006] NSWCA 248
• Procedural fairness does not require panel to
disclose in advance proposed increase or
decrease in WPI , and panel not required to
disclose in advance its evaluation of a deduction
for pre-existing condition Crean v Burrangong
Pet Food Pty Ltd [2007] NSWSC 839
The Consolidation of Appeal
Panels
• Prior to May 08, all Arbitrators and AMS’s
undertook panel work
• May 2009- 15 Arbitrators and 22 AMS’s
appointed to conduct the bulk of panel
work
• More timely, consistent decisions have
resulted
Trends and Outcomes
• Medical appeal rate is declining
• MAC revocation rate is declining
• Timeliness of Appeal Panel decisions
improving
• Outcomes over past 2 years:
31% of MACS confirmed
45% of MACS revoked
15% of appeals end at the gateway
9% other outcomes (eg: discontinued)
Jun-09
May-09
Apr-09
Mar-09
Feb-09
New Appeals
Jan-09
Dec-08
Nov-08
Oct-08
Sep-08
Aug-08
Jul-08
Jun-08
May-08
Apr-08
Mar-08
Feb-08
Jan-08
Dec-07
Nov-07
Oct-07
Sep-07
Aug-07
Count
Trends and Outcomes- New
Appeals
New medical appeals
New Medical appeals (Ave)
90
80
70
60
50
40
30
20
10
0
Jun-09
May-09
Apr-09
Mar-09
Feb-09
Jan-09
Medical Appeal Rate
Dec-08
Nov-08
Oct-08
Sep-08
Aug-08
Jul-08
Jun-08
May-08
Apr-08
Mar-08
Feb-08
Jan-08
Dec-07
Nov-07
Oct-07
Sep-07
Aug-07
% of MACs Appealed
Trends and Outcomes- Appeal rate
Medical appeal rate
35%
Linear (Medical appeal rate )
30%
25%
20%
15%
10%
5%
0%
Jun-09
May-09
Apr-09
Mar-09
18%
Feb-09
Revocation Rate
Jan-09
Dec-08
Nov-08
Oct-08
Sep-08
Aug-08
Jul-08
Jun-08
May-08
Apr-08
Mar-08
Feb-08
Jan-08
Dec-07
Nov-07
Oct-07
Sep-07
Aug-07
% of Revoked Medical Decisions
Trends and Outcomes- MAC
revocation rate
Medical decision reversal rate
Linear (Medical decision reversal
rate)
16%
14%
12%
10%
8%
6%
4%
2%
0%
Trends and Outcomes- Timeliness
of Appeal Panel decisions
Average time for resolution (days)
Timeliness (Average Days)
Linear (Average time for resolution
(days))
160
150
140
130
110
100
90
80
Jun-09
May-09
Apr-09
Mar-09
Feb-09
Jan-09
Dec-08
Nov-08
Oct-08
Sep-08
Aug-08
Jul-08
Jun-08
May-08
Apr-08
Mar-08
Feb-08
Jan-08
Dec-07
Nov-07
Sep-07
60
Oct-07
70
Aug-07
Days
120
Discontinued
Confirmed
Revoked
Leave not granted
Other
Jun-09
May-09
Apr-09
Mar-09
Feb-09
Jan-09
Dec-08
Nov-08
Oct-08
Sep-08
Aug-08
Jul-08
Jun-08
May-08
Apr-08
Mar-08
Feb-08
Jan-08
Dec-07
Nov-07
Oct-07
Sep-07
Aug-07
Outcomes
Appeal Outcomes
100%
80%
60%
40%
20%
0%
Questions?
Sian Leathem, Registrar
Workers Commission of NSW
www.wcc.nsw.gov.au