Ali Sleiman v AGR Tyres (18 September 2019)

Summary

The worker appealed a Medical Appeal Panel (MAP) decision under section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the ‘1998 Act’) which is normally reserved for appealing a Medical Assessment Certificate (MAC).

This decision makes it clear that a party cannot appeal a MAP decision under the section 327 appeal provisions which relate exclusively to MAC appeals.

Background 

The worker lodged a claim for 46% WPI for injuries caused by the ‘nature and conditions of employment’ with a deemed date of injury of 14 May 2014. Liability for the injuries had previously been accepted by the insurer.

In a MAC dated 19 January 2017, the Approved Medical Specialist (AMS) Dr Truskett assessed the worker as having 2% WPI being less than the compensable threshold under section 66(1) of the 1998 Act.

The worker lodged an appeal against the MAC in February 2017 and was referred for examination by Dr Drew Dixon, being a member of the MAP.

A decision was issued by the MAP dated 16 June 2017 revoking the original MAC and replacing it with a new MAC in which the worker was assessed with a compensable 14% WPI.

Almost 2 years later, the worker appealed the MAP decision.

Appeal of MAP decision

In late August 2019, relying on section 327(a) & (b), the worker lodged an appeal from the MAC issued by the MAP. There is no time limit for such an appeal based on sub-sections (a) & (b) (deterioration and further evidence).

The thrust of the appeal was that there was new evidence available which showed that the worker’s condition had deteriorated resulting in a higher WPI since MAP member, Dr Drew Dixon, examined him on 24 May 2017.

The worker conceded that he was appealing the 14% WPI assessment only ‘for the purposes of a work injury damages threshold dispute’ noting that he was required to establish a WPI of at least 15% to be eligible to pursue a claim for work injury damages.

The appeal was referred to a delegate of the Registrar (Parnel McAdam) to decide whether the appeal had prospects of success.

Mr McAdam determined that the appeal against the MAP could not proceed. His decision included legal justification as to why the appeal could not proceed including:

• An assessment of a medical dispute is performed by an AMS at first instance who prepares a MAC.
• Section 327(1) of the 1988 Act enables a party to the medical dispute to appeal against a medical assessment.
• ‘Medical assessment’ is defined in section 4 of the 1998 Act to mean an ‘assessment of a medical dispute by an approved medical specialist’.

In view of the above and the fact that Dr Drew Dixon had examined the worker in his capacity as a member of the MAP and not as an AMS, it follows that the section 327 MAC appeal provisions cannot apply to a MAP decision.

Mr McAdam also highlighted some practical problems with the section 327 appeal provisions applying to a MAP decision including that, if permissible, a MAP decision could be subject to review by another MAP. Not only would it be inappropriate for an appeal to be determined at the same level of authority, but also there ‘would be a never-ending right of appeal’.

Implications

The worker’s objective was to satisfy the 15% WPI threshold in order to pursue a work injury damages claim.

However, it is now clear by virtue of this decision that a party cannot appeal a MAP under the appeal provisions of section 327. That section relates exclusively to appealing from a MAC.

This decision is a timely reminder to carefully consider the basis for any appeal brought from an earlier decision or determination in proceedings in the Workers Compensation Commission.