Appeal against Medical Assessment

Section 327 provides that a party can appeal against a medical assessment certificate, but only in relation to an assessment on a matter that is conclusively presumed to be correct (noted above). Even then, an appeal can only be made on one of the following grounds:

1. deterioration of the worker’s condition that results in an increase in the degree of permanent impairment
2. availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment or that could not reasonably have been obtained by the appellant before that medical assessment)
3. the assessment was made on the basis of incorrect criteria
4. the medical assessment certificate contains a demonstrable error.

An appeal is made by application to the Registrar, who will not allow the appeal to proceed unless he or she is satisfied, on the face of the application and any submissions made to the Registrar, that at least one of the grounds for appeal specified above exists.

There is no time limit on appeals regarding grounds (a) and (b).

An appeal relying on grounds (c) or (d) must be made within 28 days after the date of the medical assessment, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal: section 327(5).

The Registrar may refer a medical assessment for further assessment or for reconsideration under section 329 as an alternative to an appeal against the assessment. The further medical assessment certificate prevails over any previous certificate to the extent of any inconsistency: section 329.

There can be no appeal against a medical assessment once the dispute has been determined by the Commission, or an agreement regarding the whole person impairment of the worker is made under section 66A of the Act: section 327(7).

Procedure on appeal

An Appeal Panel is to be constituted by 2 approved medical specialists and 1 arbitrator, chosen by the Registrar: section 328(1). If all the members of the Appeal Panel cannot agree on a decision, the decision may be by majority: section 328(6).

The appeal is by way of review of the original medical assessment. New evidence cannot be given on an appeal unless the evidence was not available to the appellant before the medical assessment, and could not reasonably have been obtained by the appellant before that medical assessment: section 328(2) and (3).

When attending an Appeal Panel for the purpose of an assessment, an injured worker is entitled to be accompanied by a support person (whether or not a legal adviser or an agent) to act as the injured worker’s advocate and assist in the presentation of the case to the Appeal Panel: section 328(4). The Act does not bestow a similar right on the part of the employer or insurer.

The Appeal Panel can confirm the original certificate, or revoke that certificate and issue a new certificate. The new certificate is then conclusively presumed to be correct: section 328(5).

For further information regarding the procedure for an appeal from a medical assessment, you should consult the WCC Registrar’s Guideline – appeal against medical assessment (available from wcc.nsw.gov.au).