Decision notices and disputes

Overview

The Personal Injury Commission (the Commission) has exclusive jurisdiction to examine, hear and determine all matters arising under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Workers Compensation 1987 (1987 Act).

This guidance outlines the role of medical assessors, the medical disputes pathway and the procedure for appeals.

(See Insurer guidance GN 9.2 Work Injury Damages for information on the Commission’s role in respect of damages.)

The Personal Injury Commission

The Personal Injury Commission (the Commission) is an independent statutory tribunal within the NSW justice system that provides a transparent and independent dispute resolution service. The Personal Injury Commission Act 2020 sets out the functions and powers of the Commission.

Personal Injury Commission Rules, procedural directions and policies

The Personal Injury Commission Rules 2021 (the Rules) provide operational direction to the Commission, covering matters of practice and procedure in proceedings.

Procedural directions provide a more detailed explanation of the Commission’s procedures.

The Commission’s policies set standards of practice for the Commission and the people who use the Commission’s services.

Types of dispute

Disputes in the Commission are assigned to the most appropriate dispute resolution pathway:

• legal disputes
• medical disputes
• expedited assessments
• damages disputes
• other disputes.

Information on the different dispute pathways is available on the Commission's website. The Commission has produced a range of videos to help injured workers understand the role of the Commission and what to expect at different stages of the dispute resolution process. They are available in English and six community languages.

The role of the insurer in Commission disputes

It is important that insurers are aware of the role of the Commission and the different dispute pathways available to a worker.

Insurers are to ensure all claims management activities are consistent with SIRA’s overarching claims management principles in the Standards of practice. This requires insurers to manage claims with fairness and empathy, promote transparency and participation, and ensure decisions are made in a timely and efficient manner. Specifically, insurers are to ensure workers are afforded procedural fairness, and that claims are managed in a manner to avoid unnecessary disputes or litigation.

If a dispute is brought before the Commission, the insurer should ensure appropriate and timely instructions are confirmed with legal representatives (where instructed) to help in the timely and effective resolution of disputes. Insurers should also adhere to SIRA’s expectations outlined in S.22 Insurer participation in disputes and mediations.

The medical disputes pathway

A medical dispute, defined in section 319 of the 1998 Act, is a dispute between a claimant and the person on whom a claim is made, about any of the following:

• the worker’s condition including the worker’s prognosis, the aetiology (the cause or origin) of the condition, and the treatment proposed or provided
• the worker’s fitness for employment
• the degree of permanent impairment of the worker as a result of an injury
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion
• the nature and extent of loss of hearing suffered by a worker
• whether impairment is permanent
• whether the degree of permanent impairment of the worker is fully ascertainable.

Most disputes that go through the medical disputes pathway are about the degree of permanent impairment that has been caused by a work-related injury.

A worker’s degree of permanent impairment can be a significant decision due to threshold requirements to access other entitlements (see Insurer guidance GN 5.7 Permanent impairment for more information).

The medical disputes pathway usually includes an assessment of the injury or condition by a medical assessor.

Medical Assessors

Medical assessors (previously known as Approved Medical Specialists) are appointed by the President of the Commission and are independent of workers, employers and insurers. They are highly experienced medical practitioners who are qualified in a range of medical specialties.

Medical assessors conduct assessments of the injury or condition mostly to assess the degree of permanent impairment caused by a work-related injury. Medical disputes can also concern the medical nature of a worker's injury and whether medical treatment is reasonably necessary.

The medical assessor provides the Commission with a medical assessment certificate (MAC) that outlines their independent 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 unresolved issues, the Commission may refer the matter to a Member to resolve the dispute.

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

Powers of the medical assessor on assessment

When assessing a medical dispute, a medical assessor may:

• consult with any medical practitioner or other health care professional who is treating or has treated the worker (section 324(1)(a) of the 1998 Act)
• call for the production of medical records (including x-rays and the results of other tests) and other information the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute that has been referred (section 324(1)(b) of the 1998 Act), and
• require a worker to submit him/herself for examination by the medical assessor (section 324(1)(c) of the 1998 Act).

If a worker refuses to submit himself or herself for examination by a medical assessor if required to, or in any way obstructs the examination, the worker’s rights to recover workers compensation can be suspended until the examination takes place (section 324(2) of the 1998 Act).

More information about medical assessments is available in Part 11 of the Personal Injury Commission Rules 2021 and in Procedural Direction PIC6 – Medical Assessments.

Appeals against a medical assessment

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.

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.

The medical appeal panel will:

(a)        confirm the original assessment and medical assessment certificate, or

(b)        issue a new medical assessment certificate to replace the original certificate.

Determination

After the medical appeal panel issues their written 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.

Decisions of a medical appeal panel are subject to judicial review in the Supreme Court.

More information is available in Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes.