Confirmation – One Medical Assessment Certificate (MAC) Only

Key Points
  • A worker is entitled to one assessment of permanent impairment in accordance with section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
  • Commission applies reasoning in Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 to deny section 39 effected worker further referral to an AMS.

The Commission has recently confirmed that injured workers are only entitled to one Medical Assessment Certificate with respect to their injury which is used to assess all threshold entitlements unless specific exceptions apply.

In Ali the worker sustained injuries to his lumbar spine on 3 March 2014.

He commenced proceedings for lump sum compensation and obtained a medical assessment certificate from an AMS in November 2017. The proceedings were discontinued before the Commission made final orders confirming an entitlement to lump sum compensation.

The worker was subsequently advised that his payments would cease under s 39 as he would shortly have received his full entitlement to 260 weeks of weekly compensation.

The worker commenced proceedings in the Commission seeking a further referral to an AMS for a further assessment of his degree of whole person impairment for the purpose of the s 39(2) threshold. 

This application was objected to on the basis that section 322A of the 1998 Act provides for one assessment of the degree of permanent impairment.

The matter proceeded to arbitration hearing before Arbitrator Bamber of the Workers Compensation Commission.

Counsel for the worker submitted that the use of brackets in section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) was intended to confine the situations in which only one MAC may be issued. It was argued that given the worker’s circumstances did not fall within the three proscribed categories in this section, he ought to be entitled to another assessment of the degree of his permanent impairment.

Hicksons Lawyers, appearing for the respondent employer, argued that the meaning and effect of s 322A was clear and unambiguous. Further, that applying the principles of statutory construction, the words within the brackets were not intended to limit the effect of s 322A and that the section needed to be considered in its entirety and within the context of the 1987 and 1998 Acts as a whole. It was argued that the Commission should follow the decision of Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52.

The Arbitrator ultimately found in favor of the respondent employer and did not allow the further referral to an AMS.

The decisions in Ali and Singh provides further certainty to workers and employers that once a medical assessment certificate has been obtained post June 2012, it will be the only medical assessment certificate that a worker will be entitled to unless there is a further legislative entitlement set out in regulations or transitional provisions. 

Post by Mitchell Strachan

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