Craig Bell and Stephanie Wigan | October 2013 | Employers Liability
In the matter of Adam Hamdon and Aska Aluminium Pty Ltd (liquidator appointed) [WCC: 5569/12] the Workers Compensation Commission refused an application for reconsideration of a medical assessment certificate (MAC), despite acknowledging there may have been plausible grounds for an Appeal.
Who does this impact? Insurers and employers seeking to dispute the findings of a MAC.
The Facts: • A MAC was issued on 31 January 2013 which assessed the applicant as having a combined total of 10% WPI of the lumbar spine (7% WPI) and right shoulder (3% WPI) as a result of the work injury on 25 August 2006.
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Appeal of a MAC is preferable to a Reconsideration
• The AMS had made a 4/7th deduction pursuant to Section 323 in respect of the right shoulder. However no deduction was made for the lumbar spine. • Ultimately the Commission refused the respondent’s application for reconsideration, despite acknowledging there may be plausible grounds. In the statement of reasons for the decision, it was highlighted there is a public interest objective in the finality of a matter. Consideration must be had as to whether the application is frivolous or brought without proper justification. The Arbitrator also acknowledged that the objectives of the Commission was to ‘provide a fair and cost effective system for the resolution of disputes … and that the Commission has a duty to do justice between the parties according to the substantial merits of the case’ : Deputy President Roche in Samuel v Sebel Furniture [2006] NSWWCCPD141 (Samuel). The Arbitrator reported that the AMS took a ‘detailed and correct history of the injury, its effects on the applicant and his pre-existing conditions’ (at 16 of COD). However, the Arbitrator did not accept the respondent’s submissions that the AMS had failed to make a Section 323 deduction for the lumbar spine. The Arbitrator refused to allow the MAC to proceed back to the AMS for reconsideration.
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Appeal of a MAC is preferable to a reconsideration Craig Bell and Stephanie Wigan | October 2013
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It was reasoned that as the AMS had made a very significant deduction (4/7th) in respect of the right upper extremity this ‘demonstrates [the AMS] was alert to the principles relevant to whether any deduction should be made in respect of the lumbar spine’ (at 20 of COD). However, surprisingly the Arbitrator then indicated that there was ‘another avenue of Appeal open to the respondent and in [her] view is the proper pathway given the issues raised by the application’ (at 21 of COD). This may indicate the Arbitrator’s belief that the real issue was whether an Appeal should have been filed against the finding of the AMS, rather than seeking a reconsideration of the MAC.
Conclusion The Certificate of Determination in Adam Hamdon and Aska Aluminium Pty Ltd (liquidator appointed) [WCC: 5569/12] highlights the importance for insurers and employers to appeal against a medical assessment certificate when faced with errors which require further review, rather than seek a reconsideration.
For more information, please contact: Craig Bell Partner T: 02 8257 5737 M: 0418 673 112 craig.bell@turkslegal.com.au
Stephanie Wigan Senior Associate T: 02 8257 5707 M: 0417 479 920 stephanie.wigan@turkslegal.com.au
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