Procedural Direction PIC6 – Medical Assessments

Introduction

1.     This Procedural Direction provides information about applying for, and the assessment of, the following medical assessment matters:

(a) the assessment of medical disputes under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b) permanent impairment disputes under section 58(1)(d) of the Motor Accidents Compensation Act 1999 (the 1999 Act) and section 7.21 and schedule 2, clause 2(a) of the Motor Accident Injuries Act 2017 (the 2017 Act);

(c) treatment and care disputes under section 58(1)(a) or (b) of the 1999 Act or sections 3.24 and 3.28, and Schedule 2, clause 2(b) and (c), of the 2017 Act;

(d) earning capacity disputes under section 4.8 and schedule 2, clause 2(d) of the 2017 Act;

(e) threshold injury disputes under schedule 2, clause 2(e) of the 2017 Act;

(f) non-binding medical opinion under section 7.27 of the 2017 Act, and

further medical assessment under section 62 of the 1999 Act or section 7.24 of the 2017 Act.

Preliminary

2.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

3.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

5.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).

Applicable legislation and rules

6.    Parties should be familiar with the following provisions:

(a) Part 7, Chapter 7 of the 1998 Act;

(b) Division 2, Part 3 of the Workers Compensation Act 1987 (the 1987 Act);

(c) Part 3.4 of Chapter 3 of the 1999 Act;

(d) Division 7.5 of Part 7 and Schedule 2, clause 2 of the 2017 Act;

(e) Part 11 of the PIC Rules, and

Clause 13 of the Motor Accident Injuries Regulation 2017(the 2017 Regulation).

Application for medical assessment

7.    Proceedings may be commenced by lodging an application in the form approved by the President and within the timeframes set out in the enabling legislation and the PIC Rules.

8.    The Application must comply with:

(a)    all requirements specified in any approved application form, and

(b)    all requirements specified in any approved online application process through the Commission’s Electronic Case Management system.

9.    Documents attached to an application must be relevant to the real issues in the proceedings.

10.    The President will refuse to accept, seal or issue a document that does not comply with the procedural requirements. If a non-compliant application or reply has been inadvertently accepted, the President or an appropriate decision-maker will issue a direction that the matter will not proceed until the procedural deficiency is rectified.

11.    If the rules in relation to the commencement or conduct of medical assessment proceedings are not complied with, the Commission may set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings, in accordance with rule 8 of the PIC Rules.

Motor Accidents Division

12.    An application for medical assessment under the 1999 Act may be brought at any time. Rules 102 and 103 of the PIC Rules set out the pre-lodgement requirements for permanent impairment and treatment disputes under the 1999 Act.

13.    In relation to applications for medical assessment under the 2017 Act:

(a)    A medical dispute about a decision of an insurer may not be referred for assessment by a claimant until either:

1. the decision has been the subject of an internal review by the insurer;
2. the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the required period, or
3. the insurer has declined to conduct a review.

(b)    An application for a medical assessment may be lodged at any time, and should, be lodged as soon as practicable after the claimant receives either:

1. the insurer’s internal review of the reviewable decision;
2. the insurer’s decision to decline to conduct the internal review, or
3. if the insurer has failed to complete the internal review and notify the claimant of the internal review within the required period, as soon as practicable after that due date.

(c)     The requirements of 13(a) and (b) above do not apply to a medical dispute about the degree of permanent impairment of the injured person that has resulted from injury caused by the motor accident.

(d)     An application in respect of a medical dispute about the degree of permanent impairment of the injured person that has resulted from injury caused by the motor accident, may be made at any time, provided that the requirements under cl 4.115 of the Motor Accident Guidelines are satisfied.

14.      All relevant supporting documentation must be attached to the application, and must be lodged as an indexed and paginated bundle.

15.     For an application for assessment of permanent impairment dispute under the 2017 Act, the President can refuse to accept the referral by a party to a claim of a dispute about the degree of permanent impairment if the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party.

16.     For an application for assessment of whether the injury caused by the motor accident is a threshold injury (as defined in section 1.6 of the 2017 Act) for the purposes of the 2017 Act (see Schedule 2, clause 2(e)), the applicant party must produce with the application the evidence that demonstrates the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the 2017 Act.

17.     A party must lodge medical evidence in support qualified by a treating health practitioner or a practitioner authorised by the Motor Accident Guidelines to give evidence in the proceedings (this includes holding a general or specialist registration with the Australian Health Practitioner Regulation Agency). Otherwise, the medical evidence will be inadmissible under section 7.52 of the 2017 Act

18. The respondent may lodge a reply within 21 days of registration of the application.

19. When a reply is lodged, all relevant supporting documentation must be attached to the reply, and must be lodged as an indexed and paginated bundle.

Workers Compensation Division

20.    A dispute for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:

(a)    wholly disputes liability;

(b)    makes an offer of settlement and one month has elapsed since the offer was made, or

(c)    fails to determine the claim when required (s 289(3) of the 1998 Act).

21.    Where the medical assessment concerns a threshold dispute in accordance with section 313 of the 1998 Act, Procedural Direction WC4 – Work Injury Damages sets out additional relevant procedures.

22.    Parties to a medical dispute are not to attach legal submissions in the documents lodged in connection with the dispute. Any legal submissions will be removed from the documents lodged prior to referral to the medical assessor.

Allocation of medical disputes

23.    Upon receipt of all relevant information, the President will refer the medical dispute for assessment.

24.    The dispute may be referred to one or more medical assessors having regard to the nature of the injury and any continuing disabilities, the nature of the dispute, the location of the claimant, the location of the medical assessor and any other relevant fact or issue.

25.    The Commission will advise the parties of the medical assessor/s who have been allocated to conduct the medical assessment.

Allocation of a medical dispute in the Motor Accidents Division

26.    On receipt of submissions in reply, or the expiration of the 14-day period, whichever occurs first, the dispute will be reviewed by the Commission for allocation to a medical assessor for determination.

27.    The allocation of an application may be deferred for a period of time that the President considers appropriate in the following circumstances:

(a)     further information or documentation has been requested;

(b)     there are other claims or issues in dispute or likely to be in dispute which would more conveniently be determined at the same time;

(c)     if the President is satisfied that the matter may be resolved by the parties and to allow the parties an opportunity to settle the claim;

(d)     the issues in dispute involve medical disputes which require a medical assessment, and that medical assessment has not occurred;

(e)     the claimant’s injury has not sufficiently recovered to enable the claim to be quantified having regard to any medical evidence attached to the application or reply, or

(f)     if there are other good reasons to defer the allocation of the application.

Allocation of a permanent impairment dispute in the Workers Compensation Division

28.    There are two pathways for resolution of permanent impairment disputes in the Workers Compensation Division:

(a)    disputes regarding permanent impairment to be referred to a medical assessor, and

(b)    disputes regarding permanent impairment referred to a Member.

29.    A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission, before the degree of permanent impairment is assessed.

30.    If an agreement is reached between the parties in relation to the worker’s degree of permanent impairment:

(a)     the parties may lodge consent orders reflecting the agreement with the Commission;

(b)     the applicant may discontinue the proceedings before the Commission and the parties may enter into a Complying Agreement under section 66A of the 1987 Act, or

(c)     the member may issue a Certificate of Determination by consent, reflecting that agreement.

31.    A dispute in relation to the degree of permanent impairment may be referred to a member for conciliation, in appropriate circumstances. If the matter remains unresolved, a member may determine the dispute in accordance with the evidence. Alternatively, the member may refer the matter to a medical assessor for assessment.

32.    Where the dispute is referred to a medical assessor, the parties may agree on the medical assessor who is to assess the dispute, or, if the parties have not agreed, the President will choose the most appropriate assessor to conduct the assessment. The parties may advise the Commission in writing of the name of the medical assessor they have agreed to appoint at the time of filing the application and/or reply or within seven days after the dispute is referred. However, if the President is not satisfied that the medical assessor nominated by the parties is appropriate, a different medical assessor may be selected.

Request for reallocation to a different medical assessor

33.    Either party may apply to the Commission in writing to have the application reallocated to a different medical assessor on the grounds that the medical assessor has a conflict of interest.

34.    A request for reallocation must be made within 7 days of receiving the notification of allocation of the matter and include submissions and reasons as to why the party is of the view that the medical assessor should not determine the dispute. A copy of the request must be provided to all parties to the matter.

35.    The request for reallocation will be considered by the President. If the President determines that it is not appropriate for the medical assessor to determine the application or dispute, the President will reallocate the matter and notify the parties.

36.    A matter may also be reallocated to a different medical assessor if the original medical assessor becomes unwell, retires, is otherwise unable to complete the assessment or is no longer appropriate to conduct the assessment.

Assessment arrangements

37.    The parties will be issued with a copy of the referral to the medical assessor. A party must raise any deficiency with the referral in writing to the President and any other party. If appropriate, an amended referral will be issued. An amended referral replaces any referral previously issued.

38.    The referral to the medical assessor will include:

(a)    the matters for assessment;

(b)    the material to be considered by the medical assessor;

(c)    the method of assessment;

(d)    information concerning any relevant previous assessments or awards made concerning the person being assessed, and

(e)    details of any other assessor/s allocated to also assess the dispute, including the injuries referred to them, if more than one assessor is to assess the dispute.

39.    If a party indicates that an interpreter is required in relation to an application for assessment of a medical dispute, the Commission will arrange for an interpreter to be available when required as part of the dispute resolution process, and the Commission will meet the costs of the interpreter.

40.    For further information on interpreters, please see the Commission’s policy Interpreting Services.

Conduct of the medical assessment

41.   Division 11.2 of the PIC Rules relates to the conduct of the medical assessment.

Medical Assessment Procedure

42.   In accordance with rule 108 of the PIC Rules, the President may determine the procedure for medical assessment proceedings, including whether the assessment will be conducted in person, via audio-visual link, telephone, or by any other means determined to be appropriate in the circumstances.

43.   The Commission will advise the parties of the assessment procedure when advising the parties of the medical assessor/s who have been allocated to conduct the medical assessment. The President may also determine that a medical assessment should be conducted on the papers without a medical examination. In making such a determination, the President will consider:

(a)   the nature and complexity of the injuries and issues in dispute;

(b)   the likely impact of not conducting a medical examination on the outcome of the dispute;

(c)   the extent and detail of the information provided;

(d)   any submissions by the parties as to why a medical examination is required, and

(e)   the availability of the claimant to attend a medical assessment.

44.   Rule 108(3) of the PIC Rules provides that a party to the proceedings may object to the way in which the medical assessment proceedings are to be conducted. Any objection must be made in writing to the President as soon as is practicable after receiving advice of the referral and include submissions and reasons as to why the party is of the view that the proposed assessment procedure is not appropriate. A copy of the objection must be provided to all parties to the matter.

45.   Any objection will be considered by the President. If the President determines that the proposed assessment procedure is not appropriate, the parties and the assessor/s will be notified of the revised assessment procedure.

46.   The medical assessment must be conducted in the way that best supports the objects of the enabling legislation and the PIC Act, given the facts and circumstances of the particular claim and the particular medical assessment.

47.   Medical assessments are conducted in private and are not open to the public. An examination may not be recorded by the claimant or any other person.

48.   The parties are not to communicate directly with a medical assessor at any time with the exception of the injured person during the examination.

Surveillance Material

49.   In accordance with rule 109 of the PIC Rules, surveillance recording may not be referred to a medical assessor in medical assessment proceedings unless:

(a)   exceptional circumstances exist, as determined by a member of the Commission or the President, and

(b)   the Commission or the President orders that the surveillance recording may be referred.

50.   A party who wishes to lodge a surveillance recording for referral to a medical assessor must comply with the procedural requirements under rule 109 of the PIC Rules. This includes:

(a)   lodging, at the same time the party lodges the application or reply, the material from the surveillance recording that is relevant to the issues in the proceedings, together with a description of the other surveillance recording material in the party’s custody or control and the reason why it is not relevant to the issues in the proceedings, and

(b)   serving on the other parties the entire recording, including material from the recording that is not lodged.

Medical Imaging

51.   All relevant medical imaging must be listed by the parties in the application or reply, and, if an electronic copy is available, it must be included in the application or reply.

52.   In accordance with rule 33(4) of the PIC Rules, the lodging and service of a list describing and clearly identifying the film or scan satisfies the lodging and service requirements of rule 67 of the PIC Rules.

53.   Original images should not be lodged with the Commission. The claimant should take the original medical imaging listed in the application or reply, whether in a physical or electronic format, to any relevant medical assessment examination.

54.   The medical assessor/s will consider any original medical imaging and accompanying reports that are taken to the examination, and:

(a)   where the medical imaging or reports have not previously been included in the documentation supporting the application or reply and exchanged by the parties, the medical assessor will list the medical imaging in their certificate and attach a copy of any associated reports to their certificate, and

(b)   the party in possession of the medical imaging will make those images, or an electronic version of those images, available to the other party to inspect on request.

Support Person

55.   In accordance with rule 110 of the PIC Rules, if the person being assessed is a person under legal incapacity, a carer, legal guardian, tutor, next friend, or other support person or personal representative may be present during an assessment.

56.   If the person being assessed is not a person under a legal incapacity, a support person may only be present during an assessment if the medical assessor conducting the assessment considers it reasonable in the circumstances. During the conduct of such an assessment, any person other than the claimant who has been permitted to be present may not respond to questions, unless invited to do so by the medical assessor.

57.   A legal or union representative, and a treating medical or health practitioner of the person being assessed are not able to act as a support person.

58.   The medical assessor can ask the support person to withdraw if their behaviour interferes with the conduct of the examination.

Failure to attend a medical assessment examination

59.   If the person being assessed is unable to attend the scheduled assessment for any reason, they must notify the President prior to the date of the examination.

60.   Where the claimant fails to attend a scheduled appointment, the assessor is to notify the President in writing, within two working days of the scheduled appointment.

61.   Failure to attend a medical assessment examination on two occasions without a reasonable excuse may result in the proceedings being dismissed in accordance with section 54(a) of the PIC Act.

Certificates

62.   Following a medical assessment, the medical assessor will provide a certificate in accordance with the requirements of any applicable enabling legislation. A copy of that certificate will be provided to the parties by the Commission.

Medical assessment certificate or multiple assessments of permanent impairment

63.   Rule 111 of the PIC Rules sets out the procedure for the issuing of certificates in matters involving multiple assessments of permanent impairment.

64.   In the case of a complex injury where different medical assessors are required to assess different body systems, a lead assessor will be appointed by the President to consolidate the lead assessor’s assessment with the assessments of the other assessors for the purposes of giving:

(a)   a combined certificate under section 61 of the 1999 Act or section 7.23 of the 2017 Act, or

(b)   a medical assessment certificate under section 325 of the 1998 Act.

65.   The medical assessors chosen to undertake the multiple assessments will be notified by the PIC, in the referral, of the lead assessor and non-lead assessor(s).

66.   The non-lead assessor will carry out an assessment and provide it to the lead assessor to consolidate and issue the relevant certificate. The non-lead assessor’s certificate will not be provided to the parties separately.

Incomplete Certificates in the Motor Accidents Division

67.   Rule 112 of the PIC Rules provides for a matter to be referred back to a medical assessor or medical review panel for the assessor or review panel to correct an incomplete certificate.

68.   A certificate is incomplete when it does not comply with the requirements of section 61 of the 1999 Act or section 7.23(7) of the 2017 Act.

69.   If a medical assessor or review panel provides an incomplete certificate, the Commission may refer the matter back to the medical assessor or review panel to ensure it complies.

70.   Either party may request that the matter be referred back to the medical assessor or review panel due to an incomplete certificate by making an application, in writing, to the PIC.

71.   Examples of incomplete certificates include, but are not limited to, where:

(a)    disputes and/or injuries are not referred to;

(b)    submitted documentation is not referred to;

(c)    a certificate is unsigned, or

(d)    a certificate or parts of the certificate are omitted.

72.   In considering whether or not the certificate is incomplete, the Commission may seek submissions from the parties.

73.   After being notified of an incomplete certificate, the medical assessor must issue a complete certificate to the parties. To do this, the medical assessor may require a claimant to attend further examination.

Appeals, Reviews and Obvious Errors

74.   Procedural Direction PIC7 – Appeals, Reviews, Reconsideration and Correction of Obvious Errors in Medical Disputes, sets out the procedure for:

(a)   lodging an appeal against a medical assessment in the Workers Compensation Division;

(b)   applying for a review of a medical assessment in the Motor Accidents Division, and

(c)   seeking correction of an obvious error in a medical assessment in the Workers Compensation or Motor Accidents Division.

Application for further medical assessment in the Motor Accidents Division

75.   Section 62 of the 1999 Act and section 7.24 of the 2017 Act (together with Part 5, Division 3 of the 2017 Regulation), provide that:

(a)   a medical assessment referred for assessment may be referred, again, for assessment on the grounds of deterioration of the injury or additional relevant information about the injury, and

(b)   a matter may not be referred again for assessment unless the deterioration of the injury or additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment.

76.   Rule 104 of the PIC Rules sets out the pre-lodgement requirements for an application under section 62 of the 1999 Act.

77.   The application for further medical assessment will be referred to the President to consider the application and make a determination as to whether the President is satisfied that the application meets the requirements for referral under section 62 of the 1999 Act, or section 7.24 of the 2017 Act and clause 13 of the 2017 Regulation.

78.   In making the determination, the President will consider:

(a)   the application and reply and the supporting material;

(b)   any other applications and replies and/or medical assessment certificates in relation to this medical dispute, or any other medical disputes in relation to the same claimant, not limited to the same matter (after the parties have been provided with these documents), and

(c)   the objects of the enabling legislation and the PIC Act.

79.   The parties will be advised of the determination as soon as is practicable after the expiry period for the respondent to lodge a reply in accordance with the PIC Rules. The President is not required to provide reasons where he or she decides that the matter can proceed to a further medical assessment.

80.   If a determination is made that the matter will be referred for further medical assessment, the President will determine how the assessment is to proceed and determine an appropriate medical assessor or assessors to conduct the further assessment in accordance with the procedures set out in this Procedural Direction.

81.   In relation to further medical assessments under the 2017 Act:

(a)   rule 105(3) of the PIC Rules provides that if an injury has not previously been the subject of a medical assessment, an application for further assessment of a medical dispute is not required and an original application to refer a medical dispute for assessment may be made in relation to that injury, and

(b)   the matters in dispute in a further medical assessment can be limited by an agreement between the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under section 7.25 of the 2017 Act.

82.   The Commission will provide the medical assessor/s with the information as set out in this Procedural Direction.

83.   The medical assessor will conduct the further medical assessment, and issue any certificate/s, in accordance with this Procedural Direction.