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Contents (1998 - 86)
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Workplace Injury Management and Workers Compensation Act 1998 No 86
Current version for 22 November 2019 to date (accessed 10 April 2020 at 09:59)
Chapter 7 Part 7
Part 7 Medical assessment
319   Definitions
In this Act—
approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)  the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)  the worker’s fitness for employment,
(c)  the degree of permanent impairment of the worker as a result of an injury,
(d)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)  the nature and extent of loss of hearing suffered by a worker,
(f)  whether impairment is permanent,
(g)  whether the degree of permanent impairment of the injured worker is fully ascertainable.
320   Appointment of approved medical specialists
(1)  The President is, in accordance with criteria developed by the Minister, to appoint medical practitioners to be approved medical specialists for the purposes of this Part.
(1A)    (Repealed)
(2)  The terms of any such appointment may restrict an approved medical specialist to medical disputes of a specified kind.
(2A)  One or more approved medical specialists may be appointed as a senior approved medical specialist, either by the instrument of appointment of the approved medical specialist or by a later instrument executed by the President.
(3)  The President is to ensure that, as far as reasonably practicable, arrangements are in place to facilitate the taking place of assessments under this Part in the regional areas of the State.
(4)  The Authority may arrange for the provision of training and information to approved medical specialists to promote accurate and consistent assessments under this Part.
(5)  The Registrar may from time to time issue a list of the medical practitioners who are for the time being appointed as approved medical specialists under this section. The list is evidence of the appointments concerned.
(6)  A matter or thing done or omitted to be done by an approved medical specialist in the exercise of functions under this Act does not, if the matter or thing was done or omitted in good faith, subject the approved medical specialist personally to any action, liability, claim or demand.
321   Referral of medical dispute for assessment
(1)  A medical dispute (other than a dispute concerning permanent impairment of an injured worker) may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2)  The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.
(3), (4)    (Repealed)
321A   Referral of medical dispute concerning permanent impairment
(1)  The regulations may make provision for or with respect to—
(a)  the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and
(b)  the giving of notice of a referral to the parties to the dispute.
(2)  Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.
(3)  A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute.
322   Assessment of impairment
(1)  The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)  Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)  Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note.
 Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)  An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.
322A   One assessment only of degree of permanent impairment
(1)  Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A)  A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2)  The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)  Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a)  assessment and a medical assessment certificate under this Part, or
(b)  a determination by the Commission under Part 4.
(4)  This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).
323   Deduction for previous injury or pre-existing condition or abnormality
(1)  In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)  If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note.
 So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)  The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4)  The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
(5)    (Repealed)
Note.
 Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.
324   Powers of approved medical specialist on assessment
(1)  The approved medical specialist assessing a medical dispute may—
(a)  consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b)  call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c)  require the worker to submit himself or herself for examination by the approved medical specialist.
(2)  If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination—
(a)  the worker’s right to recover compensation with respect to the injury, or
(b)  the worker’s right to weekly payments,
is suspended until the examination has taken place.
(3)  This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.
325   Medical assessment certificate
(1)  The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2)  A medical assessment certificate is to be in a form approved by the Registrar and is to—
(a)  set out details of the matters referred for assessment, and
(b)  certify as to the approved medical specialist’s assessment with respect to those matters, and
(c)  set out the approved medical specialist’s reasons for that assessment, and
(d)  set out the facts on which that assessment is based.
(3)  If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4)  An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.
326   Status of medical assessments
(1)  An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a)  the degree of permanent impairment of the worker as a result of an injury,
(b)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)  the nature and extent of loss of hearing suffered by a worker,
(d)  whether impairment is permanent,
(e)  whether the degree of permanent impairment is fully ascertainable.
(2)  As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.
327   Appeal against medical assessment
(1)  A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)  A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3)  The grounds for appeal under this section are any of the following grounds—
(a)  deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)  availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c)  the assessment was made on the basis of incorrect criteria,
(d)  the medical assessment certificate contains a demonstrable error.
(4)  An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5)  If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6)  The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note.
 Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
(7)  There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.
(8)  Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note.
 Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
328   Procedure on appeal
(1)  An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2)  The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3)  Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4)  When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5)  The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6)  The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
329   Referral of matter for further medical assessment or reconsideration
(1)  A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a)  the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b)  a court or the Commission.
(1A)  A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2)  A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.
330   Costs of medical assessment
(1)  The costs of medical assessments under this Part (including the remuneration of approved medical specialists) are payable by the employer or insurer, except as otherwise provided by the regulations. The Authority may, for the purposes of meeting those costs, impose fees for the carrying out of medical assessments or make other arrangements for meeting those costs.
(2)  If a worker is required to submit himself or herself for examination pursuant to this Part, the worker is entitled to recover from the worker’s employer, in addition to any compensation otherwise provided—
(a)  the amount of any wages lost by the worker by reason of so submitting himself or herself for examination, and
(b)  the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred in so submitting himself or herself.
(3)  If it is necessary for a worker to travel in order to submit himself or herself for examination but the worker is not reasonably able to travel unescorted, the fares, travelling expenses and maintenance referred to in this section include fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort for the worker provided to enable the worker to submit himself or herself for examination.
(4)  If the cost of fares, travelling expenses and maintenance referred to in this section includes the cost of travel by private motor vehicle, that cost is to be calculated at such rate as is fixed for the purposes of section 64 of the 1987 Act.
(5)  A reference in this section to a medical assessment includes a reference to a further medical assessment and an appeal against a medical assessment.
331   Guidelines
Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.