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. 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