The Workers Compensation Legislation Amendment Act 2018, assented on 26 October 2018 introduced a number of reforms to the workers compensation scheme, but one of the most intriguing reforms is Schedule 2, the removal of Section 65 (3) of Workers Compensation Act 1987 which originally stated:

If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless an approved medical specialist has assessed the degree of permanent impairment.

As of 1 January 2019 this clause is repealed. The Arbitrators of the Workers Compensation Commission may now make orders for an assessment of permanent impairment, which are binding, pursuant to Section 322A of the Workplace Injury Management and Workers Compensation Act 1998 and the decision has the status and effect of a Medical Assessment Certificate.

What does this mean for the various disputes involving an assessment of permanent impairment? Can Arbitrators flex their authority in all these disputes? Not necessarily.

The Workers Compensation Commission issued Bulletin 33 which indicated in the event a dispute involves a dispute on threshold in respect of:

  1. a claim for work injury damages
  2. whether a worker is defined as ‘high needs’ or ‘highest needs’

the Registrar, more likely than not, would refer the dispute to an Approved Medical Specialist for determination.

In the event a dispute does not involve a threshold argument, (ie. the Worker submits a claim for 14% WPI and there is an offer of 11% WPI) the WCC may refer the matter for an initial teleconference.

What happens if the insurer fails to determine the dispute, or there is no competing assessment of permanent impairment?

The Arbitrator certainly has the discretion to order assessment of permeant impairment and the matter of Meredith Kato v City of Sydney [2019] NSWWCC 288, Arbitrator Rachel Homan outlines some key indicators that she considered in exercising this power:

  • A competing assessment of permanent impairment was not obtained/provided or served in the proceedings.
  • There is no dispute as to liability for injury.
  • An examination of the existing Independent Medical Examination report by the Arbitrator did not indicate the assessment was unreliable or inappropriate or failed to adhere to the SIRA Guidelines.
  • There were no submissions made in respect of the IME report being unreliable or inappropriate or failed to adhere to the SIRA Guidelines.
  • Whether any grounds or reasons to incur further delay and costs associated with a referral to the AMS is justified.

The above is straightforward case, but workers compensation claims are never straightforward and each case must be examined on its own merits.

In complex disputes where liability issues arise, would an Arbitrator have the same considerations where there is competing evidence but no assessment of permanent impairment? In the event where liability is determined in the worker’s favour and a claim for permanent impairment is made, it should be considered that even though liability was disputed, this should not stop an assessment of permanent impairment being made and the Arbitrator should consider making an order for permanent impairment.

On the other hand, what happens when there is no competing permanent impairment assessment, but opinion that a worker has not attained maximum medical improvement? In this case, it can be appropriate for the Arbitrator to have the matter referred to the AMS as the question of stability has always been in the hands of medical specialists.

A practitioner could take a chance and argue the competing report could be flawed, inappropriate or factually incorrect. If an Arbitrator has the existing power to prefer one medical opinion over another in liability disputes, then it could be arguable that one medical opinion should prevail over another when it concerns whether a worker has attained maximum medical improvement and assessment of permanent impairment This argument should not seek to rely on the one report or take a hypercritical approach on another report without treating doctors reports and contemporaneous medical evidence in support.

A practitioner should consider the best strategy in achieving the optimal outcome and try to protect an injured worker’s rights and entitlements in the future. Noting that the Arbitrator’s determination is considered is binding as a one and final Medical Assessment Certificate, practitioners should undertake careful review of their medical evidence and IME reports before proceeding to the Commission.