Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes

Introduction

1.   This Procedural Direction sets out the procedure in relation to:

(a)   a reconsideration of a medical assessment under section 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b)   an appeal to a medical appeal panel against a medical assessment under section 327 of the 1998 Act;

(c)   a review of a medical assessment under section 63 of the Motor Accidents Compensation Act 1999 (the 1999 Act) or section 7.26 of the Motor Accident Injuries Act 2017 (the 2017 Act), and

(d)   correction of an obvious error in a certificate issued by a medical assessor or   panel in connection with a medical dispute.

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)   Pt 7, Ch 7 of the 1998 Act;

(b)   Pt 3.4 of Ch 3 of the 1999 Act;

(c)   Div 7.5 of Pt 7 of the 2017 Act, and

(d)   Pt 11, Pt 13 and rule 133A of the PIC Rules.

Appealing or reviewing a medical assessment

7.   A party may appeal or review a medical assessment in accordance with the enabling legislation of each division.

Making an application

8.   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 PIC Rules.

9.   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.

10.   The President will refuse to accept, seal or issue a document that does not comply with the requirements under rule 17 of the PIC Rules or this Procedural Direction. 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.   An application for appeal or review may only be amended in accordance with Division 4.2 of the PIC Rules.

12.   If the rules in relation to the commencement or conduct of panel review 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.

Workers compensation division

13.   Where an application to appeal is registered, the Commission will defer issuing a Certificate of Determination, pending the outcome of the appeal.

14.   If a Certificate of Determination has been issued or a complying agreement registered under section 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).

15.   The Appeal Application must identify:

(a)   the ground/s of appeal, with appropriate reference to the Medical Assessment Certificate appealed against and the ground for appeal specified under section 327(3) of the 1998 Act, and

(b)   the decision, assessment and order/s sought on appeal.

16.   All submissions provided with an application 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.

17.   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/fresh evidence, 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.

Time limits for lodging an application

18.   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 President is satisfied that special circumstances justify an increase in the period for an appeal (s 327(5)of the 1998 Act).

19.   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.

Lodgment and service

20.   All documents must be lodged in the Commission’s electronic case management system.

21.   The Appeal Application will be registered if the President 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 service and response.

22.   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.

23.   The appellant must lodge a Certificate of Service within 7 days of the date of the Direction, certifying service of the Appeal Application on each other party.

24.   The other parties to the appeal may respond to the Appeal Application by lodging an Opposition within 21 days of the date of the Direction.

25.   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. The failure to lodge an Opposition may result in the appeal being considered in the absence of any submissions by the respondent/s.

26.   Grounds of appeal should not be raised in an Opposition. Should a respondent wish to rely on a ground of appeal as specified in section 327(3) of the 1998 Act, a separate appeal must be lodged in accordance with the above procedure.

27.   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.

28.   The legal representatives for each party must certify that their client’s case has reasonable prospects of success in accordance with section 327(8) of the 1998  Act and cl 2 of Sch 2of the Legal Profession Uniform Law Application Act 2014.

President’s Determination

29.   An appeal will not proceed to determination before a Medical Appeal Panel unless the President is satisfied that, on the face of the application and any submissions made, at least one of the grounds for appeal specified in section 327(3) of the  WIM Act 1998 has been made out (s 327(4) of the 1998 Act).

30.   The President will review the appeal ‘on the papers’ and, in some circumstances, may issue a Direction for further information.

31.   The President will concurrently determine any issue of time under section 327(5) of the 1998 Act and whether the appeal will proceed under section 327(4) of the 1998 Act.

32.   The President will issue a decision in writing as soon as practicable. The President is not required to provide reasons where he or she decides that the appeal can proceed to a Medical Appeal Panel.

33.   The President 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).

Motor accidents division

34.   Either party may apply to the President to refer a medical assessment by a single medical assessor to a review panel for review. Such an application may only be made on the grounds that the decision was incorrect in a material respect.

35.   An application for review of a medical assessment must be made within 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought (section 63 of the1999 Act; section 7.26 of the 2017 Act).

36.   In exceptional circumstances, the President may extend the time for making an application for review (section 63(7)(b) of the 1999 Act; section 7.26(10)(b) of the 2017 Act; rule 129 and rule 133A of the PIC Rules). If the application is lodged more than 28 days after the date of the medical certificate for which the review is sought, the lodging party must:

(a)   as soon as practicable give notice to the other parties of the intention to seek the extension

(b)   make the extension application at the same time as the relevant application to which it relates;

(c)   provide reasons why the application has been lodged out of time;

(d)   provide the full details of the arguments in favour of granting an extension of time for the making of the application, and

(e)   provide details of the demonstrable and substantial injustice that losing the right to make the application would allegedly cause.

37.   A combined certificate assessment cannot be the subject of a review, except by way of review of any of the assessments of the single medical assessor on which the combined certificate assessment is based.

A medical assessment may not be referred for review on more than one occasion.

Lodgment and service

38.   A party must lodge a paginated and indexed bundle of documents that should be considered by the President and/or the Review Panel and submissions concerning the appropriate medical assessment.

39.   The submissions must:

(a)   include details of the decision of the single medical assessor that is the subject of the application for review;

(b)   the reasons why the decision is incorrect in a material respect;

(c)   the critical portions of the documents relied on, and

(d)   the appropriate medical assessment that should be made in the event that the matter proceeds to a review panel.

40.   Other than set out above, the parties are not to lodge and serve any further material unless it is in the interests of justice and:

(a)   reasonable notice is provided to the other party that this step is being taken and the nature of the further evidence; and

(b)   explanation provided by that party that further material is being served during the deliberations by the review panel and why that material was not previously served; or

(c)   the review panel requested the material.

(d)   A sealed copy of the application must be served on the other parties within 7 days of lodgment of the application.

41.   The respondent may lodge a sealed copy of the reply to the application within 21 days of being served with the application. Any reply must include a paginated and indexed bundle of documents, not otherwise included in the initial bundle, and submissions. The reply must include a response to the reasons given in the application.

President’s Determination

42.   The President will review the application, any reply, the documentation and materials relevant to the application to determine whether he or she is satisfied that there is reasonable cause to suspect that the decision determining the medical assessment was incorrect in a material respect under section 63 of the 1999 Act or section 7.26 of the 2017 Act.

43.   If the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the application will be referred to a review panel and the President will advise the parties of the review panel details. The President is not required to provide reasons where he or she decides that the matter can proceed to a review panel assessment.

44.   The matters in dispute before a medical review panel 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.

45.   The allocation of an application may be deferred for a period of time that the Commission 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 PIC 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.

Reconstitution of an appeal or review panel

46.   Either party may apply to the Commission in writing to have a panel reconstituted on the grounds that a panel member has a conflict of interest.

47.   A request for reconstitution 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 panel member/s should not determine the dispute. A copy of the request must be provided to all parties to the matter.

48.   The request for reconstitution will be considered by the President. If the President determines that it is not appropriate for the panel member/s to determine the application or dispute, the President will reallocate the matter and notify the parties.

Conduct of proceedings

49.   A panel is constituted by the President and comprises of a member and two medical assessors. The medical assessors will be selected having regard to the nature of the injuries and any continuing disabilities, the nature of the medical dispute, the location of the injured person and any other relevant information.

50.   In accordance with rule 128 of the PIC Rules, the panel is to conduct and determine the proceedings in accordance with procedures determined by the panel. The panel is not bound by the rules of evidence and may inquire into matters that are relevant to the issues in dispute as the panel thinks fit.

51.   The panel 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 dispute. This may include undertaking the review on the papers, using online conferences (via audio or audio-visual link) or face-to-face meetings as appropriate.

52.   The panel will conduct a preliminary review of the matter and may issue directions as to the future conduct of the proceedings. This may include whether further submissions, information and/or a medical examination is required.

53.   In motor accidents proceedings, the panel may consider material that was not before the single medical assessor. In workers compensation proceedings, the panel will consider whether any fresh evidence may be given on appeal in accordance with s 328(3) of the 1998 Act.

54.   Where a medical examination is required, the Commission will advise the parties of the time and place of the examination.  One or both of the medical assessor panel members will conduct the examination, depending on the circumstances of the case.

55.   When an assessment hearing in workers compensation appeal proceedings is required, the President will advise the parties of the time and place of the hearing. The panel hearing is informal and provides the parties with an opportunity to provide 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.

56.   Division 11.2 of the PIC rules and the procedures set out in relation to conduct of medical assessments in Procedural Direction PIC6 – Medical Assessments also apply to medical assessments conducted during panel review proceedings.

Certificates

57.   The panel may confirm the decision of the medical assessor or set aside the decision and make a decision in substitution for the decision set aside by the panel.

58.   The panel is also to issue a new combined certificate in the motor accidents division proceedings to take account of the results of the review when required.

59.   The panel will provide a certificate in accordance with the requirements of any enabling legislation. A copy of that certificate will be provided to the parties by the Commission.

Reconsideration applications in the workers compensation division 60.

60.   Section 329(1A) of the 1998 Act provides that the President may refer a medical assessment under Pt 7 of Ch 7 to a medical assessor for reconsideration.

61.   A reconsideration application may be lodged by letter, setting out the grounds for the reconsideration and the orders sought. It should be made as soon as practicable after the party becomes aware of the basis for seeking a reconsideration.

62.   The reconsideration application must identify the grounds for reconsideration, and the decision or assessment sought on reconsideration. Submissions must be attached, divided into numbered paragraphs with appropriate subheadings, addressing:

(a)   each ground for reconsideration;

(b)   where relevant, the circumstances that justify any delay in the making of the reconsideration application, and

(c)   where relevant, why the decision should be reconsidered, rather than appealed.

63.   The applicant must include the date of service of the reconsideration application on the other parties to the dispute.

64.   If a party seeks to rely on fresh evidence, additional evidence or substituted evidence in relation to a ground for reconsideration, 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 fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and

(d)   submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision was made.

Lodgment, service and responding to an application

65.   The applicant must serve a copy of the reconsideration application on all parties to the proceedings, together with a notification that the parties have 21 days to reply, prior to lodgment in the Commission. A copy of this notification must be attached to the application.

66.   The reconsideration application will be accepted if the President is satisfied that it complies with the relevant procedural requirements. The parties will be notified in writing whether the reconsideration application is accepted.

67.   The other parties may respond to the reconsideration application by lodging and serving a reply within 21 days of service of the application.

68.   The reply may be by letter setting out submissions dealing clearly and succinctly with each of the ground/s for reconsideration and submissions in support. The failure to lodge a reply may result in the reconsideration application being considered in the absence of any submissions by the respondent/s.

President’s Determination

69.   The President will consider whether it is appropriate to refer the matter to the medical assessor for reconsideration. The following matters will be considered in deciding the reconsideration application:

(a)   the objects of the Commission under ss 3 and 42 of the PIC Act;

(b)   the reason for and extent of any delay in bringing the application;

(c)   any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would     have likely led to a different result if before the original decision maker;

(d)   the public interest in finality of litigation;

(e)   that mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and

(f)   the interests of justice.

70.   Reconsideration applications are generally determined on the papers. However, in some circumstances a direction may be issued for further information or an online conference (via audio or audio-visual link) or hearing may be held. The President will advise the parties of the relevant time and place of any online conference or hearing.

71.   The Commission will issue the reconsideration decision in writing as soon as practicable after it is made.

72.   If the President accepts the reconsideration application, the matter will usually be referred back to the original medical assessor, unless that medical assessor is unavailable or inappropriate.

Correction of obvious errors in medical assessment certificates

73.   A party may make an application to the President for correction of an obvious error in a medical assessor or review panel certificate.

74.   Examples of obvious errors in a certificate include, but are not limited to:

(a)   the incorrect description of a party to proceedings;

(b)   a clerical or typographical error in the certificate;

(c)   an error arising from an accidental slip or omission;

(d)   a defect in form, or

(e)   an obvious inconsistency between the certificate and the reasons explaining the certificate.

75.   An application to correct an obvious error should be made in writing to the President, and served on all parties to the proceedings, as soon as practicable. The application must set out the details of the obvious error and the terms of the suggested correction.

76.   Each application to correct an obvious error will be considered on its merits, having regard to the context of the document sought to be corrected and any accompanying reasons. The Commission may seek submissions from all the parties prior to exercising the discretion to correct an obvious error.

77.   In motor accidents division matters, the President will refer an application for correction of an obvious error to the medical assessor or review panel as soon as practicable after receipt of the application. In deciding whether there is an obvious error in the certificate, the medical assessor or review panel may seek submissions from the parties.

78.   If a decision or certificate contains an obvious error, a replacement document may be issued to the parties.

79.   An amendment to a document to correct an “obvious error” does not amend the date the original document was issued, or decision was made, unless precisely stated.