Practice Direction No 16 - Appeal against Medical Assessment

The purpose of this Practice Direction is to set out the Commission’s practice and procedure in relation to an appeal to a Medical Appeal Panel against a medical assessment by an Approved Medical Specialist under s 327 of the 1998 Act.

1 January 2020

Commencement

This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) and commences on 1 January 2020. It replaces the Appeal against medical assessment policy dated February 2011.
Application
This Practice Direction applies to disputes under s 327 of the Workplace Injury Management and Workers Compensation Act 1998(the 1998 Act). It should be read in conjunction with the State Insurance Regulatory Authority Workers compensation medical dispute assessment guidelines (the Guidelines) gazetted on 21 December 2018, and which commenced on 1 January 2019.
Purpose
The purpose of this Practice Direction is to set out the Commission’s practice and procedure in relation to an appeal to a Medical Appeal Panel against a medical assessment by an Approved Medical Specialist under s 327 of the 1998 Act.
Appeal Application
An appeal is commenced by lodging an Application – Appeal Against a Decision of Approved Medical Specialist (Form 10) (Appeal Application). See Guide to completing Form 10.
The Commission will defer issuing a Certificate of Determination, pending the outcome of the appeal.
If a Certificate of Determination has been issued or a complying agreement registered under s 66A of the Workers Compensation Act 1987 in respect of the dispute, there can be no appeal against the medical assessment (s 327(7) of the 1998 Act).
Grounds of appeal
An appeal can only be made in respect of a medical assessment that is conclusively presumed to be correct (s 327(2) of the 1998 Act). In accordance with s 326(1) of the 1998 Act, a medical assessment is conclusively presumed to be correct as to the following matters:
(a) the degree of permanent impairment of the worker as a result of an injury;
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality;
(c) the nature and extent of loss of hearing suffered by a worker;
(d) whether impairment is permanent, and
(e) whether the degree of permanent impairment is fully ascertainable.
The grounds of appeal under s 327(3) of the 1998 Act are:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
(c) the assessment was made on the basis of incorrect criteria, and
(d) the Medical Assessment Certificate contains a demonstrable error.
The Appeal Application must identify:
(a) the ground/s of appeal, with appropriate reference to the Medical Assessment Certificate appealed against;
(b) whether the appeal is from the whole or only part, and which part, of the medical assessment, and
(c) the decision, assessment and order/s sought on appeal.

Time
If the appeal is lodged on a ground that the assessment was made on the basis of incorrect criteria or the Medical Assessment Certificate contains a demonstrable error (s 327(3)(c) or s 327(3)(d) of the 1998 Act), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal (s 327(5) of the 1998 Act.
If an appeal is brought out of time, the appellant must provide:
(a) reasons why the appeal has been lodged out of time, and
(b) submissions in support of special circumstances which would justify an increase in the period for an appeal.
Submissions
All submissions must:
(a) clearly and succinctly address each ground of appeal;
(b) be divided into numbered paragraphs with appropriate subheadings, which separately address each ground of appeal;
(c) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference;
(d) include the relevant page or paragraph reference to the evidence;
(e) identify whether the worker should be re-examined by a member of the Medical Appeal Panel, and, if so, provide reasons why, and
(f) identify whether the matter should proceed to a hearing before the Medical Appeal Panel, and, if so, provide reasons why.
If a party seeks to rely on additional relevant information as a ground of appeal (s 327(3)(b) of the 1998 Act) or give fresh evidence, additional evidence or substituted evidence on appeal (s 328 of the 1998 Act) they must provide:
(a) a schedule of the evidence, including the author and date of the evidence;
(b) a clear copy of the evidence;
(c) submissions as to why the evidence is additional relevant information, or fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against, and
(d) submissions as to why the evidence was not available to and could not reasonably have been obtained by the party before the medical assessment appealed against.

Lodgment and service
All documents must be lodged in the Commission’s electronic case management system (r 8.1(2) of the 2011 Rules).
The Appeal Application will be registered if the Registrar is satisfied that it complies with the relevant procedural requirements. A copy of the registered application will be returned to the filing party, through the electronic case management system, with the seal of the Commission, together with a Direction outlining the timetable for the filing and serving of submissions and supporting documentation.
The appellant must serve a sealed copy of the Appeal Application on all parties to the proceedings within seven days of the date of the Direction. The appellant must also serve a copy of the Appeal Application on the respondent’s insurer, where the respondent is an employer.
The appellant must lodge a Certificate of Service (Form 4) within 14 days of the date of the Direction, certifying service of the Appeal Application and Direction on each other party.
The other parties to the appeal may respond to the Appeal Application by lodging an Opposition – Notice of Opposition to Appeal Against Decision of Approved Medical Specialist (Form 10A) (Opposition), within 21 days of the date of the Direction. See Guide to completing Form 10A.
The Opposition must be complete and have attached submissions dealing clearly and succinctly with each of the appellant’s grounds of appeal and submissions in support (using the format described above at [12]–[13]). The failure to lodge an Opposition may result in the appeal being considered in the absence of any submissions by the respondent/s.
The respondent/s should serve an unsealed copy of the Opposition on each other party (including the insurer) prior to lodgment with the Commission. There is no requirement to serve a sealed copy of the Opposition on each other party, as the Commission does not return a sealed copy to the filing party.

Prospects of success
The legal representatives for each party must certify that their client’s case has reasonable prospects of success in accordance with s 327(8) of the 1998 Act and cl 2 of Sch 2 of the Legal Profession Uniform Law Application Act 2014.
The certification appears in the Application – Appeal Against a Decision of Approved Medical Specialist (Form 10) and Opposition – Notice of Opposition to Appeal Against Decision of Approved Medical Specialist (Form 10A).

Discontinuing an appeal
If the appellant seeks to discontinue the appeal prior to a decision being issued, it must lodge and serve on each other party an Election to Discontinue Proceedings (Form 14B).
If the parties agree to discontinue the appeal on terms, the parties must lodge an Agreement to Discontinue (Form 14A). This must identify the terms of agreement and the proceedings to be discontinued.

Role of the Registrar
An appeal will not proceed to determination before a Medical Appeal Panel unless the Registrar is satisfied that, on the face of the application and any submissions made, at least one of the grounds for appeal specified in s 327(3) of the 1998 Act has been made out (s 327(4) of the 1998 Act).
The Registrar will review the appeal ‘on the papers’ and, in some circumstances, may issue a Direction for further information.
The Registrar will concurrently determine any issue of time under s 327(5) of the 1998 Act and whether the appeal will proceed under s 327(4) of the 1998 Act.
The Registrar will issue a decision in writing through the electronic case management system as soon as practicable after it is made (s 327(4) and/or s 327(5) of the 1998 Act). The Registrar is not required to provide reasons where he or she decides that the appeal can proceed to a Medical Appeal Panel.
The Registrar may refer the matter for further assessment as an alternative to an appeal (s 327(6) and s 329(1)(a) of the 1998 Act). For example, a matter may be referred for further assessment where the Approved Medical Specialist made a calculation error in the assessment of the worker’s whole person impairment.

Role of a Medical Appeal Panel
A Medical Appeal Panel will determine the appeal, if the Registrar decides that the appeal can proceed pursuant to s 327(4) of the 1998 Act. A Medical Appeal Panel is constituted by the Registrar and comprises of an Arbitrator and two Approved Medical Specialists.
The Medical Appeal Panel is limited to reviewing a Medical Assessment Certificate on the grounds of review under s 327(3) of the 1998 Act. The Medical Appeal Panel may confirm the Medical Assessment Certificate or revoke it and issue a new Medical Assessment Certificate in its place under s 328(5) of the 1998 Act.
The Medical Appeal Panel determines which of the procedures it is to adopt on appeal, in accordance with the Guidelines. The Medical Appeal Panel procedure may include:
(a) preliminary review;
(b) ‘on the papers’ review;
(c) further medical examination by an Approved Medical Specialist on the Medical Appeal Panel, and
(d) assessment hearing.

Preliminary review
The Medical Appeal Panel will usually conduct a preliminary review of the matter, in the absence of the parties. Following the preliminary review, the Medical Appeal Panel may issue directions as to the future conduct of the appeal. This may include whether further submissions are required, whether a further medical examination is required and/or whether the matter will proceed to a hearing.

On the papers
An appeal will usually be determined ‘on the papers’ without the need for a hearing, unless the Medical Appeal Panel is not satisfied that there is sufficient information supplied in respect of the appeal.

Further medical examination
Where a further medical examination is required, the Registrar will advise the parties of the time and place of the examination. Usually only one Approved Medical Specialist on the Medical Appeal Panel will conduct the examination. An interpreter will be arranged for the examination at the request of the worker, at no cost.
The Medical Appeal Panel will consider the results of any medical examination undertaken in determining the appeal. The Medical Appeal Panel will not provide a copy of any examination report before the decision in the appeal has been issued.

Assessment hearing
Where an assessment hearing is required, the Registrar will advise the parties of the time and place of the hearing. The Medical Appeal Panel hearing is informal and provides the parties with an opportunity to present oral submissions in respect of the appeal. In most hearings, examination in chief and cross-examination will not be permitted.
If a hearing is held, it will be sound recorded, and a copy of the recording will be available to the parties on request.

Decision
If the appeal is determined on the papers or the decision is reserved following hearing, the Registrar will issue the Medical Appeal Panel decision in writing through the electronic case management system as soon as practicable after it is made.
The Commission will publish decisions consistent with its Policy on Publication of Decisions in the Workers Compensation Commission..

His Hon Judge Gerard Phillips

President

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