Workers compensation disputes

Disputes are assigned to the most appropriate dispute resolution pathway.

Medical disputes

Most disputes that go through this pathway are about the degree of permanent impairment that has been caused by a work-related injury, but they can also concern the medical nature of a worker’s injury and whether medical treatment is reasonably necessary.

The medical disputes pathway usually includes an assessment of the injury or condition by a Medical Assessor. Medical Assessors are independent medical specialists appointed by the Commission. The Medical Assessor will usually examine the worker and review the information provided by the parties, especially the medical and imaging reports.

The Medical Assessor provides the Commission with a Medical Assessment Certificate that outlines their independent and unbiased assessment about the injury or condition. Based on this assessment, the worker, the employer and the employer’s insurer may agree to resolve the dispute and agree on the amount of compensation payable. If a dispute continues, or there are outstanding issues to be resolved, the Commission may refer the matter to a Member to resolve the dispute.

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Lodgment
Lodgment Examination and assessment Status of assessment Appeal

Lodgment

Applications to resolve a dispute through the medical disputes pathway, and responses to medical dispute applications, may be lodged with the Commission.

When to lodge a dispute resolution application

Before a worker can lodge an application with the Commission, the worker must have first submitted a claim on their employer or their employer’s workers compensation insurer.

If the worker is not satisfied with the insurer’s decision about their claim, or any part of their claim, they may lodge an application with the Commission. The worker can also lodge an application if:

  • the insurer has failed to make a decision in relation to their claim,
  • the insurer has sent a letter stating that all or part of the claim has not been accepted or is no longer accepted, or
  • they have received a letter from the insurer stating that the claim has been accepted but the worker disagrees with the amount of compensation payable.

Workers who disagree with all or part of the insurer’s decision have the right to request a review by the insurer before lodging an application with the Commission.

The worker or party lodging the application is called the applicant. The person or party responding to the dispute resolution application is called the respondent.

The Commission cannot resolve all workers compensation disputes because the law requires some classes of workers to seek assistance with their claims from other agencies responsible for their administration. These classes of workers include coal miners, volunteer rescue workers, and workers who suffer specified dust-related conditions.

How to lodge an application

Lodging the correct application is the first step for the applicant to apply to have a dispute resolved by the Commission.

If the dispute is about lump sum compensation for permanent impairment, only the worker or their representative can apply to the Commission. Most applicants are legally represented, with the dispute resolution application being lodged by the legal representative on their behalf.

An application can only be lodged through the Commission’s online lodgment portal. More information about making an application is available on our lodge a dispute page.

If the dispute is about:

  • liability for and the quantum  of lump sum compensation for permanent impairment, or
  • past or future medical expenses

then the applicant must complete and lodge an Application to Resolve a Dispute.

An Application to Resolve a Dispute will proceed down the legal disputes pathway and may be referred by the Commission to an approved medical specialist for an independent assessment, as part of the dispute resolution process.

If the dispute is about:

  • the degree of permanent impairment, other than for lump sum compensation
  • whether the degree of permanent impairment is fully ascertainable, or
  • the worker’s condition and fitness for employment

then the applicant must complete and lodge an Application for Assessment by a Medical Assessor.

All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process. This early exchange of information assists with discussions to help resolve the dispute.

An Application for Assessment by a Medical Assessor will proceed down the medical disputes pathway unless the respondent raises a legal issue when they respond to an application, in which case the dispute will proceed down the legal disputes pathway .

How to respond to an application

The respondent will receive a sealed copy of the application from the applicant and must respond within 21 days of the date of registration of the application. Most respondents are legally represented and the response is lodged by the legal representative on their behalf.

The response can only be lodged through the Commission’s online lodgment portal. More information about lodgment is available on our lodge a dispute page.

To respond to an application to resolve a dispute (Form 2), the respondent must complete and lodge a response to application to resolve a dispute (Form 2A).

To respond to an application for assessment by approved medical specialist (Form 7) the respondent may complete and lodge a response to application for assessment by an approved medical specialist (Form 7A).

How long does resolving a dispute take

The time taken to resolve a dispute depends on:

  • the issues in dispute
  • the standard of preparation by the parties
  • the willingness of parties to genuinely attempt resolution
  • whether a decision is appealed.

The Commission aims to resolve disputes as quickly as possible and will encourage the parties to resolve their dispute at the earliest opportunity.

Relevant resources

Provision of interpreter services

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Examination and assessment

Most medical disputes involve an assessment by a Medical Assessor.

When and where will the assessment take place?

If a medical dispute is referred to a medical assessor, a dispute resolution officer will arrange an appointment at the earliest possible time with a specialist who is accredited in the assessment of the injuries that are the subject of the dispute.

Medical assessments are conducted throughout NSW, at a location suitable to the claimant where possible. This includes at the Commission’s Medical Suites at 1 Oxford Street, Darlinghurst. The assessment may be conducted by video when that is appropriate.

Claimants and legal representatives will be notified in writing by the Commission of the name of the approved medical specialist and the date, time and place of the assessment.

The insurer is required to meet the reasonable costs of  the claimant attending this assessment.

What to expect at a medical assessment

The appointed medical assessor will review the information provided by both parties, including the medical reports from the doctors who have examined the claimant at the request of their own lawyers or at the request of the insurer, and the medical reports from the doctors who have provided treatment. They will also review any other relevant documents, including the claimant’s statement and investigations such as X-rays, MRIs, ultrasounds and CT scans, to help to get a full picture of the claimant’s injury and its effects.

To understand more about the claimant’s injury, the medical assessor will ask about the circumstances that caused the injury, the effects of the injury, the treatment the claimant has had to date, and his or her medical history, including previous injuries.

The medical assessor will usually carry out an independent examination of the claimant at the assessor’s practice.

The Commission will arrange for an interpreter to attend the assessment and/or provide assistance for any disability needs, if the claimant requests this.

A claimant may have a support person attend with them at the assessment if the medical assessor agrees. However, the support person cannot take an active part in the assessment.

What to expect after a medical assessment

The medical assessor will prepare a Medical Assessment Certificate that sets out their decision and reasons in relation to the medical dispute.

Medical Assessment Certificates are usually issued within 14 days  after the medical assessment.

If there are multiple physical medical assessments, a lead medical assessor is appointed and all non-lead certificates are forwarded to the lead assessor who then issues a Combined Certificate.  The non-lead certificates will be forwarded to the parties with the Combined Certificate.

About medical assessors

Medical assessors are highly experienced medical practitioners who have worked in a range of medical specialties. The role of the medical assessor is to examine the claimant and provide an independent assessment to the Commission.

Medical assessors do not to give advice or recommend treatment for the claimant.

How the Medical Assessor is selected

Medical assessors are engaged directly by the Commission and are independent of workers, employers and insurers. The parties may agree on which Medical Assessor will conduct the assessment. If the parties do not agree, the Commission will choose the next available one with the appropriate expertise to assess the worker’s injury.

Medical assessors also sit on medical appeal panels.

Relevant resources

The list of approved medical specialists can be found here

Medical dispute assessment guidelines

NSW workers compensation guidelines for the evaluation of permanent impairment; 4th edition

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Resources

What to expect at a Medical Assessment (Arabic) - Workers Compensation Commission
What to expect at a Medical Assessment - Workers Compensation Commission
What to expect at a Medical Assessment (Macedonian) - Workers Compensation Commission
What to expect at a Medical Assessment (Mandarin) - Workers Compensation Commission
What to expect at a Medical Assessment (Serbian) - Workers Compensation Commission
What to expect at a Medical Assessment (Spanish) - Workers Compensation Commission
What to expect at a Medical Assessment (Vietnamese) - Workers Compensation Commission

Status of assessment

A Medical Assessor’s assessment of permanent impairment is final and binding on the parties.

Status

A Medical Assessor’s assessment about a worker’s degree of permanent impairment, outlined in the Medical Assessment Certificate, is final and binding on the parties (though it may be appealed – see below) .

If the parties accept the assessment and the dispute includes a claim for lump sum compensation, the Commission will issue a Certificate of Determination setting out the compensation payable.

If one of the parties does not accept the assessment, they have the option to appeal. An appeal must be lodged within 28 days of the Medical Assessment Certificate being issued.

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Appeal

A medical assessment that is final and binding may be appealed.

The medical appeal process

A party may appeal against a medical assessment to a medical appeal panel. When one party appeals against the assessment, the other party will have the opportunity to oppose the appeal.

There must be sound reasons for making the appeal. Appeals are generally for alleged errors in the assessment or the Medical Assessment Certificate.

An appeal may only proceed if the President’s delegate is satisfied that, on the face of the application and any submissions, at least one of the grounds for appeal has been made out.

To lodge an appeal, complete the application - appeal against decision of approved medical specialist (Form 10).

To oppose an appeal, complete the opposition to appeal against decision of approved medical specialist (Form 10A).

The medical appeal panel

If the appeal is allowed to proceed, the appeal will be referred to a medical appeal panel, made up of a Commission Member and two Medical Assessors. The Medical Assessor who did the assessment that is being reviewed cannot be on the panel.

The medical appeal panel will meet, usually by telephone, to review the appeal application and the information provided by the parties. The medical appeal panel will also review the assessment and all the information provided to the Medical Assessor who did the original assessment.

The medical appeal panel may conduct a formal hearing if they think it necessary. One of the Medical Assessors on the panel may need to re-examine the worker.

Once the medical appeal panel has finished their review, they will issue a detailed decision. They will have two options:

  • confirm the original assessment and Medical Assessment Certificate, or
  • issue a new Medical Assessment Certificate to replace the original certificate.

Determination

A written decision setting out the degree of impairment and the amount of compensation payable will be issued by the Commission when the medical appeal panel decision is available.

After the medical appeal panel issues their decision, and if the dispute includes a claim for lump sum compensation, the Commission will issue a Certificate of Determination setting out the compensation payable.

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