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Approved Medical Specialist (AMS)

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St Vincent De Paul Society v Ford [2005] NSWWCCPD 129. 8.11.05. Fleming DP.

 

The Distinction between an ‘AMS’ and a ‘Medical Assessor’

33. 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?

34. 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’.

35. 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

36. 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).

37. 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. 38. 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).

39. 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.

40. 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’?

41. 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).

42. 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.

43. 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. 44. 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).45. 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).46. 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.47. 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).

Vitaz v Westform (NSW) PL & Ors [2010] NSWSC 667. Johnson J. 22.06.10.

An appeal panel affirmed orthopaedic AMS Dr Peter Giblin’s assessment of 7% WPI in respect of left arm and cervical, thoracic and lumbar spine, in respect of the building labourer plaintiff’s 2007 lifting injury.

Deductible proportion by 98 Act s 323 was central to this certiorari application, as well as reasons. Johnson J noted administrative authorities, including Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176.

On s 323, his Honour noted Cole v Wenaline PL [2010] NSWSC 78 [42 WCMS 2] and Matthew Hall PL v Smart [2000] NSWCA 284: necessary that pre-existing condition contributes to the loss.

“While there may be some degree of ambiguity in Dr Giblin's wording, a fair reading of his reasons shows it was implicit that he considered the muscle spasms to be clinically related to the pre-existing condition. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision-maker's decision: Polglaze v Veterinary Practitioners Board [2009] NSWSC 347 at [56]. In my view, any ambiguity was removed by Dr Giblin's summary of the Plaintiff's injuries and diagnoses at paragraph 7 of the medical assessment certificate … “, his Honour said [51].

On reasons, Johnson J referred to Campbelltown CC v Vegan [2006] NSWCA 284; 67 NSWLR 372; Jones v The Registrar WCC [2010] NSWSC 481 at [37] [summary below]; Bjoko v ICM Property Service PL [2009] NSWCA 175.

Although an AMS was not a judicial officer, “It is also necessary to refer to parts of the WorkCover Guides in so far as they indicate how relevant assessments are to be carried out: Ackling v QBE [2009] NSWSC 881 at [83],” his Honour said [in 61].

Later, “Dr Giblin made findings in respect of both the cervical and thoracic spine based on his ‘clinical assessment over all’ carried out ‘as per the directions of the Workcover Guides …’. There is a presumption of regularity that an approved medical specialist has performed such tests as might be required to determine whether certain diagnostic criteria are present: Jones v The Registrar WCC [above] at [50],” Johnson J said [72].

“While Dr Giblin's findings were clearly in terms identical or at least similar to those used in the DRE criteria, I note the majority of those criteria are expressed in a conclusive and negative manner. It is difficult to conceive how one could expand meaningfully upon, for example, a finding of ‘no documented changes in structural integrity’. Had Dr Giblin found any positive indicators of certain criteria, for example those listed in DRE 2 or DRE 3 for either the cervical or thoracic spine, then he may well have had to refer to evidence of such and comment on the nature and extent of their presence before arriving at a diagnosis. This is in fact what was done in assigning the Plaintiff to DRE category 2 in respect of the lumbar spine. In contrast, I do not consider it necessary for an approved medical specialist to systematically deal with each and every criterion he does not consider to be indicated in a particular case, simply so he can expressly say they do not apply.” [73]

After referring to Annetts v McCann [1990] HCA 57; 170 CLR 596 at 59: fairness required unless expressly excluded by statute; Kioa v West [1985] HCA 81; 159 CLR 550 at 612: variable incidents of fairness; and the Workcover Guides 1.31 et fol, Johnson J said [91]: “I reject the Plaintiff's submission that informal observations made by an approved medical specialist rise above the status of a mental process or provisional view, or that they are in some way material from another source such that they must be put to a person during an examination: Commissioner for ACT Revenue v Alphaone PL [1994] FCA 1074 at [80], [82]. Again, it is a medical examination, not a hearing.

“I am not persuaded that procedural fairness required Dr Giblin to disclose to the Plaintiff, his observations made during the informal examination. Further, in circumstances where it was submitted that any response by the Plaintiff need not necessarily alter Dr Giblin's decision, I am not satisfied that the Plaintiff lost any chance of securing a different or favourable outcome. No denial of procedural fairness has been established.” [92]

Panel failure to examine the plaintiff was not unfair. As well, absence of error by the AMS vitiated contentions of panel failure to correct, or that panel endorsement was no decision.

Summons dismissed with costs.

P: Ms B Nolan, inst NSW Compensation Lawyers. 1D: Mr I Todd, inst Turks Legal.

Jones v The Registrar, WCC [2010] NSWSC 481. James J.

The plaintiff worker complained AMS Dr Antonio Fernandes, a plastic surgeon, erred in cervical spine assessment DRE I by not regarding worker statement matters, and failing to find guarding and motion asymmetry, and a medical appeal panel error in confirming the MAC.

James J noted Campbelltown CC v Vegan (2006) 65 NSWLR 372: panel should provide reasons, and Bojko v ICM Property Service PL [2009] NSWCA 175: review should not be hypercritical.

“I do not accept that there is a close parallel between the position of an AMS and the position of an expert witness or of a judge deciding which expert evidence he should prefer. An AMS is not a judge or even a lawyer and he acts as both an expert and as the decision-maker,” his Honour said [37], going on to note 1998 Act s 322, and the Workcover permanent impairment guides 1.5, 1.13, as well as AMA 5 Box 15-1 defining spinal asymmetry, and Table 15-1 to DRE cervical category I.

“It was submitted by counsel for the plaintiff that the issue had accordingly arisen whether the range of motion (or the range of loss of motion) in the plaintiff’s neck was asymmetrical or symmetrical and both Dr Matalani and Dr Hitchen had expressly referred in their reports to the range of movement in different directions. However, the second defendant [AMS] in the Certificate had simply stated that ‘the range of motion in the cervical spine was symmetrical’, without stating whether he had tested the range of motion in all three planes and had thereby failed to give adequate reasons for his conclusion that the range of motion in the cervical spine was symmetrical,” James J said [48].

“I do not consider that I should accept these submissions by counsel for the plaintiff. The second defendant was an approved medical specialist having the qualifications stated in the Medical Assessment Certificate. Under the WorkCover Guidelines he was required to assess the degree of permanent impairment, by himself making a clinical assessment and by applying the diagnostic criteria in AMA 5. He was not in a position of having to decide which of two conflicting bodies of evidence he should accept, for example whether he should accept Dr Matalani’s opinion or Dr Hitchen’s opinion.” [49]

Then, in [50]: “There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical.”

Later, after referring to reliance on administrative authorities, “The principal way in which it was contended that the second defendant had failed to consider matters he was obliged to consider was that it could be inferred, from its not being expressly stated in his reasons that he had investigated all three planes of asymmetry of motion, that he had not investigated all three planes.” [62]

Then, “In the present case the reasons given by the second defendant were otherwise extensive, the issue was identified and findings about the range of motion in three planes would have been subsumed in a finding of greater generality. The second defendant was an expert in testing the range of cervical movement and he had access to, and it can be inferred that he had read, the reports of Dr Matalani and Dr Hitchen,” his Honour said. [64]

The panel challenge depended on that against the AMS.

Summons dismissed with costs.

P: B Nolan. 1,2,3D: Crown Solcr subm. 4D [EMI]: T M Wardell.

Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [GIO] [2005] NSW WCC PD 38. Moore ADP.

To the second ground, Moore ADP noted 1998 WIM ss319 and 326(1) before continuing: “The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act.

“In the present case, the referral for medical assessment to Dr Ashwell states, ‘The matter is referred to you for examination assessment of the worker for whole person impairment…’.

“The question: ‘Has the worker suffered an injury under section 4 of the Workers Compensation Act 1987?’ was not put to the AMS.

“As the respondent employer quite properly submits, ‘clearly the AMS does not have all the evidence produced by the parties such as oral evidence. The issues of fact such as whether in fact there was an incident or the exact nature of the employment is the domain of the arbitrator’.”

Arbitrator’s decision confirmed, no order to costs.

Workcover blurb on Approved Medical Specialists >>

Workcover Fact Sheet 28.11.08: Managing Trained Assessors of Permanent Impairment >>

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