Appealing a Medical Assessment Certificate

Appealing a Medical Assessment Certificate

If you have brought a claim for lump sum compensation arising from a physical or psychological injury sustained in the course of your employment, you may need to know what a Medical Assessment Certificate is, and how you can appeal one. Let’s dive in!

What is the process leading up to a Medical Assessment Certificate?

If you have sustained an injury, you may undergo two Independent Medical Examinations (“IMEs”) – one arranged through your lawyer and one arranged through the Workers Compensation Insurer – to determine your level of Whole Person Impairment (“WPI”). You might see two Orthopaedic Surgeons if you have a knee injury, two Neurosurgeons if you have a back injury, or two Psychiatrists if you have a psychological injury.

But what happens if these two IMEs provide two different WPI assessments, for example, one says you have 12% WPI, and the other says you have 19% WPI? These differing assessments might mean agreement cannot be reached in relation to the amount of lump sum compensation payable to you.

If this occurs, your lawyer will likely recommend you bring proceedings in the Personal Injury Commission (“PIC”) to be assessed by a third Doctor, a Medical Assessor. A Medical Assessor is an independent Doctor appointed by the PIC to provide a binding determination of your WPI. You will need to attend a face to face or telehealth assessment with the Medical Assessor so that he or she can ask you questions, examine you (if necessary) and make a decision in relation to your level of impairment.

What is a Medical Assessment Certificate?

A Medical Assessment Certificate, also known as a MAC, is a report written by the Medical Assessor. It will be sent directly to your lawyer, usually within a month or so of your assessment with the Medical Assessor.

The Medical Assessment Certificate includes information about your relevant medical background, the history of your injury, your current symptoms, a review of the IME reports obtained and, most importantly, a determination of your WPI. For example, the Medical Assessor may believe, based on all the evidence before him or her, that an appropriate WPI for the 12% vs 19% scenario above, is 17% WPI.

Appealing a Medical Assessment Certificate

Either party – meaning you (the Applicant) or the Insurer (the Respondent) – has the right to appeal a Medical Assessment Certificate within 28 days of it being issued.

However, a Medical Assessment Certificate cannot be appealed simply because a party does not like the WPI assessment. An appeal can only be established on “appealable grounds”, including:

  1. Deterioration of your condition that results in an increase in the degree of permanent impairment;
  2. Availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the party appealing the Medical Assessment Certificate before it was appealed against);
  3. The assessment was made on the basis of incorrect criteria; or
  4. The Medical Assessment Certificate contains a demonstrable error.

The 3rd and 4th grounds are the most common grounds of appeal. Sometimes, a Medical Assessment Certificate contains a clear error, for example, the Medical Assessor has made a mathematical miscalculation and not calculated the WPI figures correctly. Other times, a party might argue that the Medical Assessor didn’t take into account all relevant information provided to him or her, or didn’t provide adequate reasons for reaching his or her decision.

How is an appeal lodged?

If your lawyer recommends an appeal, they will lodge on your behalf an Application to Appeal Against the Decision of a Medical Assessor in the PIC within 28 days of the date of the Medical Assessment Certificate, identifying each ground of appeal. The other party is permitted to lodge a Notice of Opposition to Appeal Against the Decision of a Medical Assessor.

An appeal will not proceed to determination unless the PIC President is satisfied that at least one appealable ground has been made out. If it can proceed, the appeal will be heard by a Medical Appeal Panel, which is a panel comprised of two Medical Assessors and one Member of the PIC.

You may need to be re-assessed by the Medical Appeal Panel, or the Panel may decide that the appeal can be decided on the written evidence before the PIC.

Appealing a Medical Assessment Certificate can be incredibly important. In an October 2023 decision by the Medical Appeal Panel, Mr Cruickshank, a NSW Police Officer, brought an appeal against a Medical Assessment Certificate in which a Medical Assessor found him to have 10% WPI for his psychological injury – which is under the 15% threshold required to obtain lump sum compensation. He argued the assessment was made on the basis of incorrect criteria and that the Medical Assessment Certificate contained a demonstrable error.

The Medical Appeal Panel agreed, finding the Medical Assessor’s WPI assessment was inconsistent with the other histories taken, and with the Medical Assessor’s own reasoning as set out in the Medical Assessment Certificate. The Medical Appeal Panel issued a new Medical Assessment Certificate, determining Mr Cruickshank’s WPI at 20% which entitled him to lump sum compensation and other rights under the Workers Compensation scheme.

What if there is no appeal?

If neither party files an appeal against the Medical Assessment Certificate within 28 days, the PIC will issue a Certificate of Determination confirming the Medical Assessor’s WPI assessment and the amount of lump sum compensation payable to you.

What should you do?

If you have any queries regarding bringing a claim for lump sum compensation, give us a call on 1300 026 875 or contact us via our website.