Reconsideration of Medical Assessment Certificates

Clarity on the Commission’s discretionary power to refer a matter for reconsideration under section 329 of the Workplace Injury Management and Workers Compensation Act 1998

The presidential decision of Deputy President Elizabeth Wood in Inner West Council v McQuade [2025] NSWPICPD 32 provides a helpful overview of the authorities on reconsideration applications under section 329 of the Workplace Injury Management and Workers Compensation Act 1998.

Deputy President Wood’s decision on the appeal brought by StateCover (respondent) on behalf of Inner West Council reaffirms the Commission retains discretionary power under section 329 of the 1998 Act to refer a matter for reconsideration, even where the medical dispute has already been the subject of a Medical Appeal Panel decision

Brief facts

The worker suffered injuries to the right knee and right shoulder on multiple occasions throughout his employment with the Inner West Council and its predecessor, onwards from March 2005. He sought permanent impairment lump sum compensation in respect of the injuries, and a dispute arose as to the aggregation of the impairment in proceedings before the Personal Injury Commission.

During conciliation, the parties reached agreement on the injuries to be assessed for permanent impairment. This agreement was recorded in consent orders dated 25 July 2023. The entire list of injuries was then referred to a Medical Assessor for assessment of whole person impairment resulting from each injury, separately.

A Medical Assessment Certificate (MAC) was issued on 12 September 2023. In the certificate, the Medical Assessor (MA) determined the worker’s whole person impairment, based on a deemed date of injury of 6 September 2022. This date corresponded to the injury of both body parts, arising from the nature and conditions of the worker’s employment.

The respondent (StateCover on behalf of Council), filed an appeal against the MAC; asserting the MA made an error by combining the permanent impairment resulting from all the injuries and, in doing so, going outside the terms of the referral. 

The Medical Appeal Panel agreed the MA had made an error by combining the separate injuries under a single deemed date of injury when assessing permanent impairment. Instead, the MA should have assessed the impairment resulting from each injury separately, as required by the Consent Orders.

The Appeal Panel revoked the MAC and issued a new MAC. However, despite having found the first MA’s approach was wrong; the MA in the Appeal Panel subsequently assessed impairment in the same fashion.

The respondent requested a teleconference before a Member of the Commission, which occurred on 18 June 2024. During the teleconference, the respondent requested referral of the matter to a MA for reconsideration in accordance with section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (“1998 Act”).

After hearing submissions, the Member delivered a decision in which he concluded he did not have the power to refer the matter for reconsideration by a Medical Assessor, largely because the matter had been the subject of a determination by an Appeal Panel. He issued a Certificate of Determination on 25 June 2024 awarding the worker lump sum compensation for a combined 28% WPI.

The respondent appealed this decision to the President of the Commission.

Appeal to the President of the Personal Injury Commission

In challenging the decision of the Member, the Council argued four grounds:

1. The Member erred in finding a previous decision by the Appeal Panel meant the matter could not be referred for reconsideration under section 329 of the 1998 Act.

2. The Member erred in concluding he did not have power to do anything other than confirm the decision of the Appeal Panel.

3. The Member failed to exercise the discretion afforded to him under section 329.

4. The Member erred in determining if the dispute was referred for reconsideration, it could only be referred to the original Medical Assessor.

The appeal was successful. DP Wood found the Member had erred in concluding a referral for reconsideration under section 329 was not possible because the dispute had already been decided by the Appeal Panel. This conclusion was described as “erroneous” and inconsistent with the decision in Adriaansen by Snell AP. DP Wood held the Member had therefore failed to exercise his discretion under section 329. She also confirmed there was “no legislative basis” for the Member’s view any reconsideration must be referred back to the original medical assessor rather than, for example, the Medical Appeal Panel’s assessor.

The Certificate of Determination was revoked, and the matter has been remitted for re-determination by a non-presidential member.

Learnings

While there are clear conclusions which were reached by DP Wood in this matter regarding the discretion of a Member under section 329 of the 1998 Act, DP Wood has also provided a helpful overview of the relevant case law which should be considered when addressing the issue of reconsideration:

• The Commission has jurisdiction to make an order referring a matter for further assessment pursuant to s329(1)(b), notwithstanding that an Appeal Panel decision has been made: Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36, [81].

• Where a party has failed in an appeal to the Appeal Panel, the party’s remedy is not restricted to the commencement of Supreme Court proceedings: Adriaansen.

• Section 329 is in broad unlimited terms not needing preconditions to be satisfied and is not restricted to the circumstances described in s327(6): Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286, Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56.

• Section 329(1)(b) allows the Commission to correct the failure to afford a party procedural fairness by an Appeal Panel and s329 can be used where no grounds of appeal are made out, but the dictates of justice require a further referral: Mansour, Milosavljevic, Adriaansen.

• Such an approach is consistent with the objectives of the legislation to provide a fair dispute resolution system and for the Commission “to act according to equity, good conscience and the substantial merits of the case” in accordance with s43(3) of the 2020 Act: Mansour.

• A referral for further assessment does not have to be conducted by the same Medical Assessor who performed the earlier assessment: Mansour.

• While s329(1)(b) is in broad unlimited terms, the section must be read in the context of the legislation: Milosavljevic, Adriaansen, and;

• The scope of s329 must be determined on a case by case basis and will always be the subject of the Commission’s jurisdictional limits: Milosavljevic, Adriaansen.

This summary by DP Wood is a helpful overview for practitioners when contemplating whether a section 329 application can be made, and whether the discretionary power of the Member should be utilised in the circumstances.

Author: Maddi Chaplin

Contributing partner: Mick Franco