Welcome to the March 2010 issue of the Edwards Michael Lawyers eBulletin.

Medical Assessment Certificates Have a Limited Life!

Section 326(1) of the 1998 Act provides that a Medical Assessment Certificate is conclusively presumed to be correct as to the prescribed matters “in any proceedings before a Court or the Commission with which the certificate is concerned”. The meaning of those words was considered by Deputy President Roche in Superior Formwork Pty Limited v. Livaja (2009) NSWWCC PD 158.

The relevant circumstances were that the worker had commenced proceedings for lump sum compensation in 2006 which proceeded to an AMS, a Medical Appeal Panel and to an application by the worker for the appeal panel to reconsider its decision. Following all of these processes, the worker discontinued the proceedings because he was dissatisfied with the assessment of his permanent impairment, this having the effect that no order of the Commission confirming the determination of 0% WPI made by the MAP was issued. In 2009 the worker commenced further proceedings for lump sum compensation in respect of the same body part.

At arbitration and on appeal, the employer argued that there was no jurisdiction to refer the matter to an AMS under s.321 because there was no “medical dispute”, such dispute having previously been determined by the MAC issued by the MAP. Because no orders creating an estoppel had been made in the original proceedings, it was necessary to argue that the MAC issued by the MAP in the previous proceedings was “conclusively presumed to be correct” in the present proceedings. Reliance was placed on the general nature of the words “any proceedings” and “concerned”, as it would have been a simple matter for the legislature to have clearly limited the operation of a MAC to the proceedings in which it was obtained.

This argument was rejected by the Deputy President, who considered that a MAC is only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained.

The employer had argued that there were strong public policy issues supporting an interpretation that, subject to issues of deterioration and the discretion to refer for further assessment under s.329, a MAC should be conclusively presumed to be correct in any proceedings concerning issues and claims subject to the MAC. It was argued that the interpretation and limitation applied by the Deputy President would invite a situation where any worker dissatisfied with the assessment of impairment made in a MAC could simply discontinue the proceedings in which the MAC was obtained and start fresh proceedings which may result in a more favourable outcome.

This argument was also rejected by the Deputy President, who noted four matters: first, a worker who discontinued and then issued further proceedings seeking the same relief based on the same evidence could be met with an application that those proceedings be dismissed as frivolous, vexatious or lacking in substance; second, that a worker who discontinued proceedings would not be entitled to costs and that this would provide a “strong disincentive”; third, a worker’s medical condition is capable of change; and, fourth, that because “the method of assessment of whole person impairment is an objective one” there was a probability that the subsequent assessment would produce the same outcome.

There are difficulties with the matters identified by the Deputy President: first, it is difficult to see how a subsequent claim could be dismissed as frivolous, vexatious or brought without proper justification where the previous proceedings have not been determined by the Commission; second, while a worker’s solicitor may be interested in costs it would not be an issue relevant to the progression of the worker’s interests and, in any event, if the first MAC had assessed a 0% WPI the solicitor would probably not have obtained costs in any event; third, while it is true that a worker’s medical condition may change, that is why further claims can be brought for deterioration and the discretion to refer for further assessment under s.329 exists; and, finally, there is a well founded perception amongst those working in the area that the method of assessment of whole person impairment is not as objective as may have been thought, this being evidenced by the regularity with which appeal panels determine the assessment made by an AMS to be erroneous.

In summary, the effect of this decision is that a MAC is not conclusively presumed to be correct in any proceedings other than those in which it was obtained and, if those proceedings are discontinued and no binding orders made by the Commission, a worker is free to commence further proceedings for lump sum compensation and be referred for assessment by an AMS notwithstanding that a MAC already exists.

Update on Expert Evidence

n Manojlovic v. Astro Group Pty Limited [2010] NSW WCC PD 21 President Keating considered an Appeal by a worker against an award for the Respondent based on rejection of the worker’s medical evidence because of inaccurate histories recorded by the expert medical witnesses.

The Arbitrator rejected evidence of Dr Bodel and Dr Giblin as they were not provided with a history of a previous, non-work related, motor vehicle accident.

President Keating relied upon the Court of Appeal decision in Peric v. John Holland Constructions Pty Limited [1984] 2 NSWLR 505 to find that histories relied upon by experts do not need to be precisely consonant with the balance of the material, only that the histories provide a “fair climate” for the opinion expressed by the experts.

On this basis, President Keating was persuaded by the absence of any evidence of neck or back symptoms prior to the work related injury.

This decision relates to inconsistencies or inaccuracies in histories recorded by medical experts, and should not be construed as affecting the onus on a party to establish the assumptions on which expert opinion is founded, in order for that evidence to be properly admissible: Makita (Australia) Pty Limited v. Sprowles (2001) 52 NSWLR 705.

Leave to Appeal Refused

In Roads & Traffic Authority of NSW v. Harwood [2010] NSW WCC PD 24, President Keating rejected an argument that future Section 60 expenses should be taken into account for the purposes of establishing the $5,000.00 threshold necessary for leave to appeal to be established.

President Keating adopted Widdup v. Hamilton [2006] NSW WCC PD 258 to find that the Commission does not have jurisdiction to make a declaratory order for payment of future medical expenses. His Honour therefore found that the amount of compensation “at issue on the appeal” for the purposes of Section 352(2) of the WIM was less than $5,000.00 and leave to appeal was refused.

Common Law: Limitations Issues

An employer has successfully resisted an application to extend time pursuant to Section 151D of the Workers Compensation Act 1987, on the basis that it had lost the opportunity to issue a cross claim against another party seeking indemnity or contribution to any damages recovered by the worker.

In Taouk v. Taouk (unreported) Ashford DCJ found that because Section 26 of the Limitation Act provides that a cross-claim for contribution cannot be brought more than four years from the date of the expiration of the limitation period for the principal cause of action (three years in this case), and the Plaintiff’s injury had occurred seven years previously, the Defendant was irretrievably prejudiced to the extent that the Plaintiff should not be granted discretionary relief.

A significant factor is that there is no provision to extend the limitation period under Section 26 of the Limitation Act, thus the employer’s potential rights to contribution were extinguished once the period had expired.

Introduction to Work Injury Damages

Read our summary of claims management issues in relation to Work Injury Damages claims.

Download the publication in PDF

Costs Guide

The 2010 addition of our Guide to Assessing Costs under the 2006 Regulations is now available.

Click here to download the Costs Guide in PDF

This is the Third Edition of this Guide and includes historical IME rates and Workcover codes