Appeal against medical assessment
This Guideline sets out the practice and procedure to be adopted by the Workers Compensation Commission ('the Commission') upon receipt of an application to appeal against a medical assessment made by an Approved Medical Specialist under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998
- Annual Review
-
Appeal Case Summaries
-
Appeal Case Summaries
- Appeal Case Summaries 032021
- Appeal Case Summaries 042021
- Appeal Case Summaries 052021
- Appeal Case Summaries 062021
- Appeal Case Summaries - 072021
- Appeal Case Summaries 082021
- Appeal Case Summaries - 092021
- Appeal Case Summaries 102021
- Appeal Case Summaries 112021
- Appeal Case Summaries 122021
- Appeal Case Summaries 012022
- Appeal Case Summaries - 032022
- Appeal Case Summaries - 042022
- Appeal Case Summaries - 052022
- Appeal Case Summaries - 022022
- Appeal Case Summaries - 062022
- Appeal Case Summaries - 072022
- Appeal Case Summaries - 082022
- Appeal Case Summaries - 092022
- Appeal Case Summaries - 102022
- Appeal Case Summaries - 112022
- Appeal Case Summaries - 122022
- Appeal Case Summaries - 012023
- Appeal Case Summaries - 022023
- Appeal Case Summaries - 032023
- Appeal Case Summaries - 042023
- Appeal Case Summaries - 052023
- Appeal Case Summaries - 062023
- Appeal Case Summaries - 072023
- Appeal Case Summaries - 082023
- Appeal Case Summaries - 092023
- Appeal Case Summaries 102023
-
Appeal Case Summaries
-
Delegations
- Instrument of Delegation Judge Gerard Phillips 1 March 2021
- Instrument of Delegation Rodney Parson Tables A and B
- Instrument of Delegation Marie Johns
- Instrument of Delegation Marianne Christmann
- Instrument of Delegation Judge Gerard Phillips 15 April 2021
- Instrument of Sub-Delegation dated 30 April 2021.pdf
- Instrument of delegation dated 23 May 2021.pdf
- Instrument of Delegation dated 25 August 2021
- President Instrument of delegation to G Capel dated 21 January 2022
- Division Head Instrument of delegation to G Capel dated 20 January 2022
- President Instrument of delegation to J Bamber dated 24 January 2022.pdf
- Division Head Instrument of delegation to J Bamber dated 24 January 2022.pdf
- Instrument of Delegation - Division Head Workers Compensation Division 25.01.22.pdf
- Instrument of Sub-Delegation - Division Head Workers Compensation Division 25.01.22.pdf
- Instrument of Revocation - Principal Registrar 25.01.2022.pdf
- Instrument of Sub-Delegation - Principal Registrar 25.01.2022.pdf
- Instrument of Sub-Delegation - Director Legal and Policy 25.01.22.pdf
- Table-A-PIC-delegations-PIC-Act-and-regulations-updated-17 February 2022.pdf
- Table-B-PIC-delegations-Rules-Updated-17 February 2022.pdf
- INSTRUMENT OF DELEGATION- 3 March 2022.pdf
- Table-B-PIC-delegations-Rules-Updated-3 March 2022.pdf
- Table-B-PIC-delegations-Rules-Updated-2024.pdf
- Fact Sheets and Videos
- Guidelines
- Key Performance Indicators
-
Legal Bulletin
-
2024 Legal Bulletins
- Legal Bulletin No. 181 04102024
- Legal Bulletin No. 180 27092024
- Legal Bulletin No. 179 20092024
- Legal Bulletin No. 178 13092024
- Legal Bulletin No. 177 06092024
- Legal Bulletin No. 176 30082024
- Legal Bulletin No. 175 23082024
- Legal Bulletin No. 174 16082024
- Legal Bulletin No. 173 09082024
- Legal Bulletin No. 172 02082024
- Legal Bulletin No. 171 26072024
- Legal Bulletin No. 170 19072024
- Legal Bulletin No. 169 12072024
- Legal Bulletin No. 168 05072024
- Legal Bulletin No. 167 28062024
- Legal Bulletin No. 166 21062024
- Legal Bulletin No. 165 14062024
- Legal Bulletin No. 164 07062024
- Legal Bulletin No. 163 31052024
- Legal Bulletin No. 162 24052024
- Legal Bulletin No. 161 17052024
- Legal Bulletin No. 160 10052024
- Legal Bulletin No. 159 03052024
- Legal Bulletin No. 158 26042024
- Legal Bulletin No. 157 19042024
- Legal Bulletin No. 156 12042024
- Legal Bulletin No. 155 05042024
- Legal Bulletin No. 154 28032024
- Legal Bulletin No. 153 22032024
- Legal Bulletin No. 152 15032024
- Legal Bulletin No. 151 08032024
- Legal Bulletin No. 150 01032024
- Legal Bulletin No. 149 23022024
- Legal Bulletin No. 148 16022024
- Legal Bulletin No. 147 09022024
- Legal Bulletin No. 146 2022024
- Legal Bulletin No. 145 25012024
- Legal Bulletin No. 144 19012024
- Legal Bulletin No. 143 12012024
-
2023 Legal Bulletins
- Legal Bulletin No. 142
- Legal Bulletin No. 141 15122023
- Legal Bulletin No. 140 08122023
- Legal Bulletin No. 139 01122023
- Legal Bulletin No. 138 24112023
- Legal Bulletin No. 137 17112023
- Legal Bulletin No. 136 10112023
- Legal Bulletin No. 135
- Legal Bulletin No. 134 27102023
- Legal Bulletin No. 133
- Legal Bulletin No. 132 13102023
- Legal Bulletin No. 131 06102023
- Legal Bulletin No. 130 29092023
- Legal Bulletin No. 127
- Legal Bulletin No. 125 - 25082023
- Legal Bulletin No. 124 18082023
- Legal Bulletin No. 123 11082023
- Legal Bulletin No. 122 04082023
- Legal Bulletin No. 121 28072023
- Legal Bulletin No. 120 21072023
- Legal Bulletin No. 119 14072023
- Legal Bulletin No. 118 07072023
- Legal Bulletin No. 117 30062023
- Legal Bulletin No. 116 23062023
- Legal Bulletin No. 115 16062023
- Legal Bulletin No. 114 09062023
- Legal Bulletin No. 113 02062023
- Legal Bulletin No. 112 26052023
- Legal Bulletin No. 111 19052023
- Legal Bulletin No. 110 12052023
- Legal Bulletin No. 109 05052023
- Legal Bulletin No. 108 28042023
- Legal Bulletin No. 107 21042023
- Legal Bulletin No. 106 14042023
- Legal Bulletin No. 105 06042023
- Legal Bulletin No. 104 31032023
- Legal Bulletin No. 101
- Legal Bulletin No. 97
- Legal Bulletin No. 96
-
2022 Legal Bulletins
- Legal Bulletin No. 92
- Legal Bulletin No. 91
- Legal Bulletin No. 88 - 25112022
- Legal Bulletin No. 87 - 18112022
- Legal Bulletin No. 86 - 11112022
- Legal Bulletin No. 85 - 04112022
- Legal Bulletin No. 84
- Legal Bulletin No. 83 - 21102022
- Legal Bulletin No. 82 - 14102022
- Legal Bulletin No. 81 - 07102022
- Legal Bulletin No. 80 - 30092022
- Legal Bulletin No. 79
- Legal Bulletin No. 78
- Legal Bulletin No. 77
- Legal Bulletin No. 76
- Legal Bulletin No. 75
- Legal Bulletin No. 74
- Legal Bulletin No. 72
- Legal Bulletin No. 71
- Legal Bulletin No. 70
- Legal Bulletin No. 69
- Legal Bulletin No. 68
- Legal Bulletin No. 67
- Legal Bulletin No. 66
- Legal Bulletin No. 65
- Legal Bulletin No. 64
- Legal Bulletin No. 63
- Legal Bulletin No. 62
- Legal Bulletin No. 61
- Legal Bulletin No. 60
- Legal Bulletin No. 59
- Legal Bulletin No. 58
- Legal Bulletin No. 57
- Legal Bulletin No. 56
- Legal Bulletin No. 55
- Legal Bulletin No. 54
- Legal Bulletin No. 53
- Legal Bulletin No. 52
- Legal Bulletin No. 51
- Legal Bulletin No. 50
- Legal Bulletin No. 49
- Legal Bulletin No. 48
- Legal Bulletin No. 47
- Legal Bulletin No. 46
- Legal Bulletin No. 44
- Legal Bulletin No. 43
-
2021 Legal Bulletins
- Legal Bulletin No. 42
- Legal Bulletin No. 41
- Legal Bulletin No. 40 - 03122021
- Legal Bulletin No. 39 - 26112021
- Legal Bulletin No. 38
- Legal Bulletin No. 37 - 12112021
- Legal Bulletin No. 36 05112021
- Legal Bulletin No. 35 29102021
- Legal Bulletin No. 34 - 22102021
- Legal Bulletin No. 33 - 15102021
- Legal Bulletin No. 32 - 08.10.2021
- Legal Bulletin No. 31
- Legal Bulletin No. 30 - 24092021
- Legal Bulletin No. 29 - 17092021
- Legal Bulletin No. 28 - 10092021
- Legal Bulletin No. 27 - 03092021
- Legal Bulletin No. 26 - 270821
- Legal Bulletin No. 25 - 200821
- Legal Bulletin No. 24 - 13082021
- Legal Bulletin No. 23 - 06082021
- Legal Bulletin No. 22 - 300721
- Legal Bulletin No. 21 - 23072021
- Legal Bulletin No. 20 - 16072021
- Legal Bulletin No. 19 - 09072021
- Legal Bulletin No. 18 - 02072021
- Legal Bulletin No. 17 - 25062021
- Legal Bulletin No. 16 - 18062021
- Legal Bulletin No. 15 - 11062021
- Legal Bulletin No. 14 - 04062021
- Legal Bulletin No. 13 - 28052021
- Legal Bulletin No. 12 - 21052021
- Legal Bulletin No. 11 - 14052021
- Legal Bulletin No. 10 - 07052021
- Legal Bulletin No. 9 - 30042021
- Legal Bulletin No. 8 - 23042021
- Legal Bulletin No. 7 - 16042021
- Legal Bulletin No. 6 - 09042021
- Legal Bulletin No. 5 - 01042021
- Legal Bulletin No. 4 - 26032021
- Legal Bulletin No. 3 - 19032021
- Legal Bulletin No. 2 - 12032021
- Legal Bulletin No. 1 - 05032021
-
2024 Legal Bulletins
- Legislation
- Memorandum of Understanding
- Motor Accidents Cost Calculators
-
Papers and Presentations
- PIC Seminar Workers Compensation February 2021
- PIC Legal Seminar Motor Accidents 080221
- PIC Insurer Seminar Motor Accidents 080221
-
Presentations by the President
- Speech by the President to the Sparke Helmore Judges’ Series
- President’s remarks: Welcome ceremony for six new Commission members
- President's Address to IRO Sydney Seminar
- Speech delivered by the President, 21 March 2024 at the Frederick Jordan Chambers
- Paper delivered by the President, 6 March 2024 at the University of New South Wales
- Speech by the President, 1 March 2024, to formally welcome six new Personal Injury Commission members
- Speech by the President to the New South Wales Self Insurers Association AGM
- Speech by the President to the St Thomas More Society
- Article by the President for barnews
- Speech by the President at the University of Notre Dame Australia for the 2023 Michael O’Dea Oration
- Speech by the President at UNSW's Personal Injury Law Legal Intensive
- Paper delivered for the NSW Bar Association, CPD facilitated by the Bar ADR Committee
- Speech delivered by the President to the Independent Review Office
- Speech by the President to Sparke Helmore Lawyers
- Speech by the President to the NSW Bar Association Conference
-
Presentations to the Commission
- Speech by Justice Richard Cavanagh at the Personal Injury Commission Mediator Conference
- Paper by The Honourable Justice Stephen Campbell at the Twilight Lecture Series
- Speech by Anne Britton at the Personal Injury Commission Two Year Anniversary
- Speech by Acting Justice John Griffith to Personal Injury Commission Members
- Inaugural ceremonial sitting speeches
-
Personal Injury Commission News
- 2024 Personal Injury Commission News
- 2023 Personal Injury Commission News
- 2022 Personal Injury Commission News
-
2021 Personal Injury Commission News
- Medical Disputes Suitable for Paper Assessment September 2021
- Edition No.20
- Edition No.19
- Edition No.18
- Edition No.17 27102021
- Edition No.16 - 19102021
- Edition No.15
- Edition No.14
- Edition No.13
- Edition No.12
- Edition No.11
- Edition No.10 - 22072021
- Edition No.9
- Edition No.8
- Edition No.7
- Edition No.6
- Edition No.5
- Edition No.4
- Edition No.3
- Edition No. 2
- Edition No. 1
-
Policy
- Access Charter
- Audio Recordings and Transcripts
- Compensation Court records
- Complaints Policy
- Interpreting Services
- Media Policy
- Mediator Code of Conduct
- Medical Assessor Code of Conduct
- Member Code of Conduct
- Merit Reviewer Code of Conduct
- Public Interest Disclosure Policy
- Security at the Commission
- Privacy
-
Procedural Directions
- Procedural Direction PIC1 – Conduct of parties during proceedings
- Procedural Direction PIC2 – Determination of matters ‘on the papers'
- Procedural Direction PIC3 – Documents and late documents
- Procedural Direction PIC4 – Expert Witness Evidence
- Procedural Direction PIC5 – Schedule of Earnings
- Procedural Direction PIC6 – Medical Assessments
- Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes
- Procedural Direction PIC9 – Production of Information and Calling of Witnesses
- Procedural Direction PIC10 - Personal Injury Commission Hearings
- Procedural Direction PIC11 – Medical Assessments Procedure – COVID-19
- Procedural Direction WC1 – Compensation payable on death
- Procedural Direction WC2 – Interim payment directions
- Procedural Direction WC3 – Presidential appeals and questions of law
- Procedural Direction WC4 – Work injury damages
- Procedural Direction WC5 – Work Capacity Disputes
- Procedural Direction WC6 – Workplace injury management disputes
- Procedural Direction WC7 – Reconsiderations of decisions of the Commission
- Procedural Direction MA1 – Stood over proceedings
- Procedural Direction MA2 – Merit review
- Procedural Direction MA3 – Approval of damages settlement
- Procedural Direction MA4 – Appointed representatives
- Procedural Direction MA5 – Matters unsuitable for assessment and mandatory exemptions
- Procedural Direction MA6 – Review of a single merit review by a review panel
- Procedural Direction MA7 – Claims disputes
- Rules
- Stakeholder Engagement Framework
- Venues for Dispute Resolution Services
- Workers Compensation Management Fee Calculator
- Archive
This Guideline sets out the practice and procedure to be adopted by the Workers Compensation Commission ('the Commission') upon receipt of an application to appeal against a medical assessment made by an Approved Medical Specialist under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. This Guideline must be considered in the context of the objectives of the Commission, in particular the obligation to provide a timely and effective dispute resolution service in relation to workers' entitlements under the workers compensation legislation.
APPEAL AGAINST MEDICAL ASSESSMENT
All parties and their representatives should be familiar with the legislation, guidelines and rules relevant to the conduct of 'medical disputes' in the Commission. These include the:
- Workers Compensation Act 1987
- Workplace Injury Management and Workers Compensation Act 1998 ('the Act'),
- Workers Compensation Commission Rules 2010 ('the Rules'), and
- WorkCover Medical Assessment Guidelines
- Workers Compensation Regulation 2010
LODGING AN APPLICATION TO APPEAL AGAINST A MEDICAL ASSESSMENT
Paragraph 42 of the WorkCover Medical Assessment Guidelines provides as follows:
Parties lodging an appeal, or opposition to an appeal, must use the approved forms and attach relevant submissions.
An 'Application - Appeal Against Decision of Approved Medical Specialist' (Form 10) must be completed in full and include:
- Submissions addressing
- The grounds of appeal
- Where relevant, the special circumstances which justify an extension of the period for lodging an appeal
- Where the matter is referred to an Appeal Panel, whether the appeal should be decided by the Appeal Panel solely on the basis of the written application and any written notice of opposition lodged, and if not, reasons why a hearing is necessary
- Whether the worker should be re-examined by the Appeal Panel
* If additional relevant information is relied upon,
- A schedule of the additional relevant information
- A copy of the additional relevant information
- A brief outline of the additional relevant information and the reasons why it was not available before the medical assessment appealed against and could not reasonably have been obtained before that medical assessment, and
- Submissions addressing the relevance of the additional relevant information and why it should be admitted
Where an appeal is lodged on the grounds that the MAC contains a demonstrable error or the assessment was made on the basis of incorrect criteria the application must be lodged within 28 days after the date the MAC is issued unless the Registrar is satisfied that there are special circumstances which justify an extension of the period for lodging an appeal. If the appeal application is lodged after 28 days the appealing party must lodge a submission setting out the special circumstances to be considered by the Registrar.
The application must be accompanied by a minimum of two copies - one copy for the lodging party and one copy for each party to be served. The application must contain a certification that the appeal has reasonable prospects of success in accordance with section 327(8) of the legislation.
If the above information and documentation are not included with the Application or if sufficient copies are not lodged, the Application will be rejected. If the Application is subsequently lodged out of time, full details of the arguments addressing the special circumstances, which justify an increase in the time allowed for the making of the appeal, will also be required.
OPPOSITION TO APPEAL AGAINST DECISION OF APPROVED MEDICAL SPECIALIST
The other parties to the appeal may respond to the Application by way of an 'Opposition to Appeal Against Decision of Approved Medical Specialist' (Form 10A).
The Opposition must be completed in full and include:
* Submissions addressing the grounds of appeal and, where relevant, submissions in response to matters raised by the appellant addressing:
o The special circumstances which justify an extension of the period for lodging the appeal
o Where the appeal is referred to an Appeal Panel, whether the appeal should be decided by the Appeal Panel solely on the basis of the written application and any written notice of opposition lodged, and if not, reasons why a hearing is necessary
o Whether the worker should be re-examined by the Appeal Panel
* The date of service of the Opposition on the other parties to the dispute
The Opposition must contain a certification that the opposition has reasonable prospects of success in accordance with section 327(8) of the legislation.
PROCEDURE FOR APPEALS AGAINST A DECISION OF APPROVED MEDICAL SPECIALIST
Paragraph 43 of the WorkCover Medical Assessment Guidelines provides as follows:
If an appeal against a decision of an approved medical specialist is accepted for filing, the application and copies will be sealed and issued to the appealing party. A standard timetable will be issued to ensure that the parties comply with the legislation and guidelines.
The appealing party must lodge a Certificate of Service (Form 4) within 14 days of the date of acceptance of the application by the registrar or by the date referred to in the standard timetable, certifying service of the application and timetable on the other parties.
The other parties to the appeal may lodge an opposition within 21 days of acceptance of the application by the registrar. The filing party should serve an unsealed copy of the opposition on each other party (including the insurer) prior to lodgement with the WCC.
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application.
Failure to lodge a Certificate of Service, where an Opposition has not been lodged, may result in the Application being struck out.
There is no requirement to serve a sealed copy of the Opposition, and accordingly the Commission will not return sealed copies of the Opposition to the lodging party.
SECTION 327(5) DETERMINATION
An appeal lodged with the Commission outside of the 28-day appeal period under the grounds of s327(c) and/or (d) of the Act, cannot proceed unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
In making this decision, the Registrar will take into account submissions of the Appellant and any submissions by the Respondent. The decision of the Registrar under s327(5) of the Act will be issued to parties.
REFERRAL FOR APPEAL, FURTHER ASSESSMENT OR RECONSIDERATION
Paragraph 44 of the WorkCover Medical Assessment Guidelines provides as follows:
Where the registrar is satisfied on the face of the application and any submissions made to the registrar that a ground of appeal has been made out, the registrar may refer the matter for determination of the appeal by a medical appeal panel or for further assessment or reconsideration by the approved medical specialist who issued the MAC, as an alternative to an appeal.
The decision of the Registrar under 327(4) of the Act, referring an appeal to an Appeal Panel constituted in accordance with section 328(1) of the Act, or for further assessment or reconsideration accordance with section 327(6) and 329(1A) of the Act, will be issued to the parties.
PROCEDURE OF THE APPEAL PANEL
Paragraph 45 of the WorkCover Medical Assessment Guidelines provides as follows:
An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case:
- preliminary review (in all matters),
- 'on the papers' review,
- further medical examination by an approved medical specialist on the appeal panel,
- assessment hearing.
Preliminary Review
Where an appeal is referred to an Appeal Panel and the parties have lodged the necessary documentation in relation to the appeal, the Appeal Panel will conduct a preliminary review of the matter in the absence of the parties.
On the Papers Decision
Wherever possible the Appeal Panel will proceed to review the medical assessment on the basis of the documents provided by the parties. The parties will be advised of the decision of the Appeal Panel following the review.
Further Medical Examination
Paragraph 45 of the WorkCover Medical Assessment Guidelines provides as follows:
Where a further medical examination is required, the registrar will advise the worker of the time and place of the examination. A support person (other than an agent or legal adviser) may accompany a worker to the examination. The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the registrar.
The registrar must be advised in advance if an interpreter is required for the examination.
The Panel will consider the results of the examination in coming to its decision.
Where a worker refuses to submit to a further examination by an Approved Medical Specialist member of the Appeal Panel then the appeal will not proceed.
Assessment Hearing
Paragraph 46 of the WorkCover Medical Assessment Guidelines provides as follows:
Where the appeal panel determines a matter is not capable of determination on the papers, either with or without a further medical examination, an assessment hearing will be arranged.
The appeal panel assessment hearing will be informal and non-legalistic, and will afford the parties a full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person, (including but not limited to a legal adviser or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters raised with the assistance of the panel members.
The Appeal Panel will, wherever possible, advise the parties of the outcome of the review at the time of the assessment hearing. Where this is not possible the parties will be advised in writing of the outcome of the review.
DISCONTINUANCE OF APPEAL
Parties who seek to discontinue an appeal must give notice of the discontinuance to the Registrar and the other parties on either approved Form 14A (by agreement) or 14B (by election).
February 2011