NSW Workers Compensation Update in respect to determination to of Medical Disputes and AMS Appointments

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By Rachael Sutton, Partner and Danny Khoshaba, Partner

Further to the NSW Workers Compensation Commission’s decision to cancel existing AMS appointments on and from 25 March 2020, the Commission has issued an update regarding case management and resolution of medical disputes.

The Commission’s approach is designed to explore the early resolution of the dispute and AMS assessment in the absence of in-person examinations during the current Covid pandemic. If an alternative to an in-person assessment cannot be accommodated, the dispute will be placed in a ‘medical assessment pending list’, with a view to prioritising these matters for assessment when the restrictions due to the pandemic ends. A medical dispute will only proceed to an in-person assessment in exceptional circumstances and under strict controls.

The Guideline indicates that:

Commission staff have undertaken a detailed review of every medical assessment matter suspended.

Procedure for resolving medical disputes involving psychiatric and psychological disorders

Consultation by video is an option open to AMSs and is suited to psychiatric assessments in circumstances where an in-person assessment is unable to be conducted.

If a medical dispute is in relation to a psychiatric and psychological disorder, the matter will be listed for assessment by an AMS psychiatric specialist in the usual way. The parties will be notified of the assessment and that it will be conducted by video. The worker’s legal representative must ensure their client is able to participate by video, including that they have access to and the ability to operate necessary equipment with smartphones being the preferred equipment for a video conference.

If, on review of the file, the AMS is of the opinion that the medical dispute is not suitable for assessment by video, the AMS will remit the matter to the Registrar for the matter to be held in the ‘medical assessment pending list’.

If either party opposes assessment by video, the matter will be listed for teleconference before an Arbitrator. The Arbitrator may:

  • Attempt to resolve the opposition to video assessment and refer the matter to an AMS for assessment by video;
  • Attempt to bring the parties to an acceptable resolution of the medical dispute; or
  • Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.

The parties may, by consent, apply to restore a matter from the ‘medical assessment pending list’ at any time, for either AMS assessment or Arbitrator teleconference.

Procedure for resolving medical disputes involving other body systems

Medical disputes for all other body systems will be initially listed for teleconference before an Arbitrator. The Arbitrator may:

  • Attempt to bring the parties to an acceptable resolution of the medical dispute;
  • Determine the medical dispute, where appropriate;
  • Attempt to narrow the evidence and issues between the parties and refer the dispute to an AMS for assessment by video; or
  • Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.

The parties may, by consent, apply to restore a matter from the ‘medical assessment pending list’ at any time, for either AMS assessment or Arbitrator teleconference.

Medical disputes requiring urgent in-person medical assessments

If the legal representative identifies the case as being urgent and requiring an in-person medical assessment, the dispute will be fast-tracked to an Arbitrator for teleconference. The Arbitrator may:

  • Attempt to bring the parties to an acceptable resolution of the medical dispute;
  • Determine the medical dispute, where appropriate;
  • Attempt to narrow the evidence and issues between the parties and refer the dispute to an AMS for assessment by either video or in-person assessment; or
  • Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.
  • If the Arbitrator determines that an in-person assessment is required and the matter is urgent, the following procedure will apply to the assessment:
  • The assessment will only be conducted if it can take place near the worker’s place of residence.
  • The day before the physical assessment, the AMS will conduct a video consultation with the worker to take a history and address any relevant issues.
  • Attendance at the in-person assessment by private vehicle or by hire car or other similar transport is strongly encouraged. If travel is by hire car or similar, the Commission will ensure the vehicle is properly cleansed before use and the cost of the transport will be met. Where at all possible, the worker should attend an in-person appointment alone.
  • The AMS will conduct the in-person assessment in the shortest time possible and will take all necessary precautions to minimise the risk of infection to the worker, staff and themselves.
  • Given that gatherings are currently restricted to two people, interpreters will be required to attend by telephone.

Medical disputes assessed ‘on the papers’

The requirement for the worker to submit to an examination by an AMS is not mandatory (see section 324(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998).

324 Powers of approved medical specialist on assessment

(1) The approved medical specialist assessing a medical dispute may–

(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c) require the worker to submit himself or herself for examination by the approved medical specialist.

The Commission has noted however that the majority of medical disputes lodged with the Commission will require examination by an AMS, either in-person or by video. Only in rare cases, for example, where a worker has passed away, would an AMS make the assessment based solely on medical and other evidence provided by the parties.

In light of the Guideline it is expected that some workers may seek to utilise these provisions to expedite their claims and insurers will need to be ready to make submissions on the appropriateness of examination by video or in person if a matter is referred to an Arbitrator for determination of this issue.

For further information, please do not hesitate to contact us.

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