St Vincent de Paul Society v Ford
[2005] NSWWCCPD 129
•8 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:St Vincent De Paul Society v Ford [2005] NSW WCC PD 129
APPELLANT: St Vincent De Paul Society
RESPONDENT: Maryanne Elizabeth Ford
INSURER:Allianz Australia Workers Compensation Ltd
FILE NUMBER: WCC1109-05
DATE OF ARBITRATOR’S DECISION: 7 June 2005
DATE OF APPEAL DECISION: 8 November 2005
SUBJECT MATTER OF DECISION: Section 376(1)(a1) of the 1998 Act; failure to provide a report from WorkCover approved medical assessor; claim not duly made.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: P K Simpson & Co
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 7 June 2005, is confirmed.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Maryanne Ford worked as a Retail Supervisor for the St Vincent De Paul Society when, on 4 October 2003, she claims to fallen over and injured herself while at work.
Ms Ford claims to have suffered injuries “to her head, neck, back, right and left arms, right and left legs, sexual organs, chest, abdomen, bowels, prolapsed vagina, and anxiety and depression”. On 7 October Ms Ford notified her employer of the injury by completing an accident form and a ‘Register of Injuries and Treatment’ recording details of the incident.
Allianz Australia Workers Compensation (NSW) Ltd is the relevant workers compensation Insurer.
On 22 July 2004 Ms Ford lodged a claim with the Insurer for medical expenses, and lump sum compensation for the sum of $56,000 for permanent impairment. Attached to that claim was a report of Dr. H. Stenning, dated 18 May 2004. Dr Stenning is a “Practitioner in Musculoskeletal Medicine”. Dr Stenning is not a medical assessor trained by the WorkCover Authority in the assessment of permanent impairment.
The Insurer failed to make a decision in relation to this claim and on 21 January 2005 Ms Ford lodged an ‘Application to Resolve a Dispute’ in the Commission. The Insurer acted for and on behalf of the Employer in the proceedings.
The dispute proceeded to conciliation/arbitration and on 7 June 2005 the Arbitrator gave her decision, with written reasons. She determined, among other things, that Ms Ford’s claim had been ‘duly made’ in accordance with the requirements of the Workers Compensation Acts (i.e. the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
The Insurer now appeals the Arbitrator’s decision. Although expressed by the Appellant to be in four parts, there is really only one issue in dispute in the appeal namely: Did the Arbitrator err in finding that Ms Ford’s claim for lump sum compensation for permanent impairment had been ‘duly made’ in accordance with the 1998 Act?
The Insurer wants the Arbitrator’s decision set aside and an order made that the proceedings be ‘struck out’. It also seeks an order for costs.
Ms Ford has filed an ‘Opposition’ to the appeal. She argues that the Arbitrator’s decision is correct and that the appeal should be dismissed, with costs.
I am satisfied that the requirements of section 352 of the 1998 Act are met and therefore leave to appeal is granted.
Both parties submit the appeal can be determined on the papers. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act). I have before me the written submissions on appeal and the whole of the Commission file in relation to the proceedings before the Arbitrator. This includes a copy of the transcript of the arbitration.
DID THE ARBITRATOR ERR IN FINDING THAT MS FORD’S CLAIM FOR LUMP SUM COMPENSATION FOR PERMANENT IMPAIRMENT HAD BEEN ‘DULY MADE’ IN ACCORDANCE WITH THE 1998 ACT?
The Arbitrator’s Decision
The Arbitrator set out the parties submissions on the issue of the validity of the claim and made her findings as follows:
“67. I am of the view that the Respondent has had both sufficient information to evaluate the claim since July 2004 and the opportunity to challenge the claim from that time. The claim has been made substantially in compliance with the WorkCover Guides. To allow the claim to be defeated at this late stage on the basis of a lack of specialist qualification of the assessor when all other elements required by the Guidelines have been satisfied would in my opinion constitute an injustice to the Applicant and would be contrary to the objectives of the Commission, stated in section 367(1) of the 1998 Act to provide a fair and cost effective system for the resolution of disputes, to reduce administrative costs across the workers compensation system and to provide a timely service ensuring that worker’s entitlements are promptly paid.
68. I find that the claim made on 22 July 2004 has been duly made.”
The Appellant’s Submissions
The Appellant argues that the Arbitrator erred in finding that the claim was duly made “ on the following grounds:
1The Arbitrator erred in failing to consider whether the worker had complied with section 260 of the 1998 Act.
2The Arbitrator erred in finding that a ‘Notice of Claim’ was duly made in accordance with sections, 260, 282 and 376 of the 1998 Act, the ‘WorkCover Provisional Liability & Claims Guidelines’ and the ‘WorkCover Guides for Evaluation of Permanent Impairment’.
3In acknowledging that Dr H Stenning was not a WorkCover Approved Assessor of Permanent Impairment, the Arbitrator erred in finding that substantial compliance with the 1998 Act, ‘WorkCover Provisional Liability and Claims Guidelines for the Evaluation of Permanent Impairment’ was sufficient to bring proceedings in the Commission.
4The Arbitrator erred in her application of section 367(1) of the 1998 Act and disregarded the mandatory provisions of section 260.
The Worker’s Submissions
Ms Ford submits the Arbitrator’s decision should be confirmed. She argues that her claim was fully particularised at the time it was made and that the Insurer had not sought further particulars, in the eight months between her claim and the Commission proceedings.
Ms Ford argues that to find that the claim is not duly made is unfair and reliant upon technicality and adherence to legal form. The Insurer accepted provisional liability for the claim for weekly benefits compensation on 13 October 2003. The Insurer had her examined by Dr Schmidt on 13 November 2003 and Dr Chase on 23 April 2004. The Insurer also arranged for Ms Ford to be examined by Dr Matalani, after which a settlement offer was made.
Ms Ford submits that the report of Dr Hemchanda Rao, General Surgeon, was served on the Insurer three months before the proceedings were commenced in the Commission. Dr Rao is a WorkCover approved medical assessor and is listed on the WorkCover web site as such. He has also provided an assessment “in accordance with the WorkCover Authority Guidelines for the Assessment of Permanent Impairment and based as required on the AMA Guide for the Evaluation of Permanent Impairment (5th Edition)”.
She further argues that Dr Stenning stated that he had assessed her impairment according to the WorkCover Guides. However in the event that Dr Stenning’s report is not accepted she argues that Dr Rao’s report was also ‘made available’.
Ms Ford submits that ‘there is nothing in the 1998 Act, the Regulations, the Rules or the Guidelines to say that a claim for permanent impairment compensation can only be made if it is accompanied by a report of an Approved Medical Specialist (AMS). This is clearly correct. However this submission confuses the role of ‘medical assessor’ and an AMS. They are not one and the same and have distinct roles in relation to the assessment of ‘medical disputes’. An AMS is appointed by the Commission and provides an independent assessment of a ‘medical dispute’ to the Commission in a dispute. His or her opinion as to the degree of permanent impairment suffered by a worker is binding on the Commission. A ‘medical assessor’ is a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in the use of the WorkCover Guides.
Ms Ford argues that the Insurer’s submission, that only an Orthopaedic Surgeon appointed as a ‘medical assessor’ (wrongly referred to in the submission as an AMS, as discussed above) is ‘unworkable’ and “would lead to extraordinary delays as there are only a limited number of orthopaedic surgeons who happen to also be appointed as AMS’s”
CONSIDERATION
For the reasons set out below I am satisfied that the Arbitrator has identified the correct issue, but has made an error of law and misapplied the relevant legislative provisions.
The Arbitrator’s purported reliance upon the doctrine of ‘substantial compliance’ was not relevant to the matters that she had to consider as the requirement that a claim for lump sum compensation for permanent impairment be accompanied by a report from a medical assessor who is, in summary, WorkCover trained, is mandatory. In addition the Arbitrator has not given adequate reasons for her decision on this point, having not set out her view on the application of the relevant law or legal principles that were argued by the parties in the submissions before her. Reliance upon the objectives of the Commission was insufficient to support the decision on the validity of the worker’s claim.
It is not disputed that Ms Ford’s claim for lump sum compensation for permanent impairment, made on 22 July 2004 by letter and was not accompanied by a report from a medical assessor trained by the WorkCover Authority in the assessment of permanent impairment. Dr Stenning’s report was relied upon. Dr Stenning is not such a medical assessor and his name does not appear on the list of assessors on the WorkCover Authority website.
WorkCover Guidelines (WorkCover Provisional Liability and Claims Guidelines)
Section 376 of the 1998 Act provides, in part, that :
“(1) The Authority may issue guidelines with respect to the following:
(a)the assessment of the degree of permanent impairment of an injured worker result of an injury,
(a1)the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury…”
A reference to the ‘WorkCover Guidelines’ is to the ‘WorkCover Provisional Liability and Claims Guidelines’ (not to be confused with the ‘WorkCover Guides for the Evaluation of Permanent Impairment’ discussed below). The WorkCover Guidelines, first issued pursuant to section 376(1) of the 1998 Act in December 2001, set out the procedures for making claims under part 3 of the 1998 Act.
Following that decision Thomson v WorkCover Authority of NSW [2004] NSWSC 282 (‘Thomson’) section 376(1)(a1) was inserted into the 1998 Act by the Workers Compensation and Other Legislation Amendment Act 2004, which was given assent on 15 December 2004. Clause 3 of Part 151 of Schedule 6 of the amending act provided that section 376(1)(a1) “extends to guidelines issued before the commencement of [the sub section]”. It is clear, from the Act and from the Minister’s second reading speech on the bill (9 December 2004, see discussion in Bennett v Highland Pine Products Pty Limited [2005] NSW WCC PD 121) that the amendment inserting section 376(1)(a1) had retrospective effect (to 1 January 2002). The content of the requirements placed on approved medical assessors did not change with the amending legislation. The amendment retrospectively validated those requirements. The effect of clause 3 of part 151 of Schedule 6 of the Workers Compensation and Other Legislation Amendment Act 2004 was to retrospectively extend section 376(1)(a1) to the existing WorkCover Guides.
Part 4 of the WorkCover Guidelines provides, in part, that:
4.“To make a claim, a worker must serve the information listed in Part 2, Rule 6 on the relevant person which is either”
4.1the employer from whom the worker claims compensation;
4.2the insurer responsible for covering the worker for compensation.”
Part 2, Rule 6 (of the WorkCover Guidelines) provides, in part, that:
“6.11 To make a claim for permanent impairment or lump sum damages the worker must provide relevant particulars about a claim.
Relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlements on the claim. The relevant particulars to be provided to the insurer are:
6.11.1…6.11.7 A medical report completed as prescribed in WorkCover Guidelines on Assessment of Permanent Impairment…”
WorkCover Guides (‘WorkCover Guides for the Evaluation of Permanent Impairment’)
The Authority issued the ‘WorkCover Guides for the Evaluation of Permanent Impairment’ (‘the WorkCover Guides’) in December 2001. The WorkCover Guides provide that “medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition”(at page 5). A medical assessor is required to be “a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in use of the WorkCover Guides” (at page 9). A list of trained medical assessors is available on the WorkCover website, with the names of practitioners being added as their training is completed.
Making a Claim under the 1998 Act
The 1998 Act incorporates the provisions of the WorkCover Guidelines, and the WorkCover Guides into the requirements for the making of a valid workers compensation claim.
Section 260 of the 1998 Act, provides, that:
“How a claim is made
(1)A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2)The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
…
(5)The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style…”
Section 282 of the 1998 Act provides that ‘Relevant particulars about a claim’ for lump sum compensation include any matters required by the WorkCover Guidelines (section 282(1)(g)). However section 282 (3) provides that:
“(3) The Insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.”
The provision of a report by a medical assessor is a ‘relevant particular’ pursuant to Part 2 Rule 6.11.7 of the Guidelines.
The Distinction between an ‘AMS’ and a ‘Medical Assessor’
Ms Ford’s submission, that ‘there is nothing in the 1998 Act, the Regulations, the Rules or the Guidelines to say that a claim for permanent impairment compensation can only be made if it is accompanied by a report of an Approved Medical Specialist (AMS)” is correct. However this submission confuses the role of a ‘medical assessor’ and an AMS. They are not one and the same and have distinct roles in relation to the assessment of ‘medical disputes’. An AMS is appointed by the Commission and provides an independent assessment of a ‘medical dispute’ to the Commission. His or her opinion as to the degree of permanent impairment suffered by a worker is binding on the Commission. A ‘medical assessor’ is a registered medical practitioner with qualifications in the relevant medical specialty who has undertaken the requisite training in the use of the WorkCover Guides. A medical assessor is chosen by the parties, at any time, and, at least, to accompany a claim for lump sum compensation.
Must a Claim for Lump Sum Compensation be Accompanied by a Report from a Medical Assessor?
In Bennett v Highland Pine Products Pty Limited [2005] NSW WCC PD 121 the application of the Act and the Guides were discussed. It was not disputed in Bennett that pursuant to section 376(1)(a1) of the 1998 Act and the WorkCover Guides, assessments of whole person impairment must be carried out by medical assessors who have undertaken the requisite training. In my view this is the correct interpretation of the requirements of the legislation and the relevant guides. When the whole of the scheme, of the Act and the relevant guides, is considered, it is clear that the intention is not only that the medical report that accompanies a claim for lump sum compensation for permanent impairment be completed as described in the Guidelines but that it be completed by an appropriately trained ‘medical assessor’.
The list of such medical assessors, from whom the claimant can select, appears on the WorkCover Authority website. A ‘medical report completed in accordance with the WorkCover Guides is a ‘relevant particular’ (section 282 of the 1998 Act) that must be provided when a claim for lump sum compensation is made. While having ‘completed’ the medical report is the requirement of 6.11.7 of the ‘Workcover Guidelines’ there is an additional requirement, found in the WorkCover Guides that: “Medical specialists trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition” (at page 5). It is this medical report, completed by a ‘medical assessor’ and in accordance with the Guides that must accompany the workers claim for lump sum compensation for permanent impairment.
Failure to Provide a Report of a Medical Assessor in a Claim for Lump Sum Compensation
Unless the failure to comply with the Act (and by incorporation, the Guidelines and Guides) in making a claim is a result of “ignorance, mistake or other reasonable cause” recovery of compensation is barred (section 260 (5) of the 1998 Act).
Both section 260 and 282 refer to the ‘matters’ and ‘particulars’ that must be addressed when making a ‘claim’. Section 260 goes to the making of a ‘valid’ claim. The onus is on the claimant to make a claim in accordance with the Act, Guidelines and Guides.
An Insurer must make a determination of a claim for lump sum compensation within the time specified in section 281 of the 1998 Act namely (in this case) “within 2 months after the claimant has provided to the Insurer all the particulars about the claim” (section 281(2)(b) of the 1998 Act).
Section 282 of the 1998 Act applies only to a claim for lump sum compensation or work injury damages. It sets out the ‘particulars’ required of this type of claim and the Insurer’s obligation to determine the claim. Part 2 Rule 6 of the Guides is made pursuant to section 282 of the 1998 Act. Section 282 (3) provides that the Insurer “is not entitled to delay the determination of a claim” on the ground that the relevant particulars are not provided.
Section 283 of the 1998 Act makes it an offence to “fail to determine a claim as and when required by this Part” (section 283(1) of the 1998 Act). Section 283 reinforces the gravity of the obligation on an Insurer to promptly consider a claim and advise the worker if it has insufficient particulars. Clearly the worker then has the opportunity to correct the defect. While failing to determine a claim in accordance with the Act is an offence, it does not work to validate an otherwise defective claim. The Insurer in this matter did not advise Ms Ford of the insufficiency of the particulars that she provided, which it now alleges affect the validity of the claim. As the Act now stands the Insurer is not prevented from arguing in the Commission that the claim was not ‘duly made’.
Has Ms Ford’s Claim been ‘Duly Made’?
If Ms Ford’s claim has not been ‘duly made’ then it cannot be said that a ‘dispute’ exists and the Commission will have no jurisdiction to hear the parties (section 289 of the 1998 Act).
Ms Ford did not include a relevant particular, being a report of a medical assessor, in her claim for lump sum compensation, sent to the Insurer on 22 July 2004. The failure to provide the report was a failure to provide a ‘relevant particular’ pursuant to section 282 and Part 2 Rule 6 of the Guidelines. There is no evidence, or suggestion in the submissions, that this failure to obtain a report from a properly trained medical assessor was due to “ignorance, mistake or other reasonable cause”. In the absence of a report from a WorkCover trained ‘medical assessor’ the claim was not duly made.
However Ms Ford did submit a report to the Insurer by a WorkCover trained medical assessor under cover of a letter dated 15 October 2004, when she sent the copy of Dr Rao’s report. She also submitted a report from Dr Lowy, an Occupational Medical Specialist and properly trained ‘medical assessor’ under cover of a letter dated 27 October 2004.
Dr Rao, General Surgeon, is a ‘medical assessor’, “trained in the use of the WorkCover Guides are to assess the degree of permanent impairment arising from a work related injury or condition” and listed on the WorkCover website. There is nothing in the Act or the Regulations that requires a claim for lump sum compensation for permanent impairment and the requisite particulars, including the report of a medical assessor, to be provided to the Insurer at the same time (albeit that the claim must ultimately be made within the statutory periods found in section 261 of the 1998 Act). The Act and the Guides contemplate the situation where the worker does not provide all relevant particulars at the time of purportedly making the claim (section 282(3) and Part2, Rule 8 of the Guides).
When the report of Dr Rao was provided to the Insurer the relevant particulars required of the Act and the Guides were then before it to enable a proper assessment of the claim. The claim was, at that time, duly made, i.e. following service of the report on 15 October 2004. The same could be said of the service of the report of Dr Lowy, medical assessor, which was given to the Insurer under cover of a letter dated 27 October 2004. Both of these medical reports were provided to the Insurer prior to the filing of the ‘Application to Resolve a Dispute’ in the Commission, on 21 January 2005. The Commission therefore had jurisdiction to hear the dispute ( section 289 of the 1998 Act).
The Workers Compensation Acts (1987 and 1998) and the Guides do not require a particular medical specialty be asked to assess the worker. It is up to the claimant/worker and is enough that the medical assessor chosen by the claimant is in a “relevant medical specialty” (Guides at page 9). Dr Rao is a General Surgeon. Given the nature of Ms Ford’s injury he is qualified to give an opinion and has provided an assessment of permanent impairment.
Summary
The somewhat tortuous path that is required to reach this conclusion is, in summary from the details above, as follows:
· The WorkCover Authority is empowered to issue guidelines as to the assessment of permanent impairment and the requirements placed on medical practitioners who are permitted to make an assessment of permanent impairment (section 376 of the 1998 Act).
· The 1998 Act and the ‘WorkCover Provisional Liability and Claims Guidelines’ provide that to make a claim for lump sum compensation for permanent impairment the worker must provide relevant particulars including “a medical report completed as prescribed in ‘WorkCover Guidelines on Assessment of Permanent Impairment’…”(section 282 of the 1998 Act and Rule 6 of Part 2 of the Guidelines).
· The ‘WorkCover Guidelines for the Evaluation of Permanent Impairment’ provide that only a ‘medical assessor’, with qualifications and training as prescribed, is to assess the degree of permanent impairment arising from a work related injury or condition.
· A claim for compensation must be made in accordance with the Guidelines (section 260(1)(a) of the 1998 Act).
· If a claim for lump sum compensation for permanent impairment is not accompanied by the relevant particulars, i.e. in this case the report of a WorkCover trained and registered medical assessor, the claim is not duly made.
· The failure to make a claim as required will be a bar to the recovery of compensation, unless that failure is due to “ignorance, mistake or other reasonable cause, or a minor defect in form or style” (section 260(5) of the 1998 Act).
The Arbitrator’s errors have not resulted in the incorrect decision. On review I have come to the same conclusion, i.e. that Ms Ford’s claim was duly made and the Commission had jurisdiction to hear the dispute, albeit by different reasoning. While the Arbitrator dealt with other issues in the proceedings, they have not been the subject of the appeal and must stand. The result is that the Arbitrator’s decision is confirmed. The ‘medical dispute’ should now be referred to an AMS in accordance with the Arbitrator’s direction.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is unsuccessful on the appeal. Division 3 of Part 8 of the 1998 Act governs the award of costs in the Commission.
The appropriate order is that the Appellant pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
8 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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