The person or body who refers a medical question to a Medical Panel Under the legislation, unless inconsistent with the context or subject-matter — Medical Panel means a Medical Panel constituted under Division 2 of Part 12 must submit:
- a document to the panel that specifies:
- the injury or alleged injury as to which the medical question relates
- the relevant facts that have been agreed and those that are still in dispute. Where possible, legally qualified Agent staff should draft the statement of agreed facts or check that the statement accurately reflects the agreed and disputed facts
- copy of all documents in their possession relating to the medical question.
Referral to the Medical Panel by a Conciliation or Arbitration Officer
If a Conciliation Officer or Arbitration Officer refers a medical question to the Medical Panel the Agent must:
seek the opinion of each party before referring a medical question to the Medical Panel for an opinion, but may refer the dispute without obtaining the consent of each party.
refer a medical question about a worker’s current work capacity Under the legislation, unless inconsistent with the context or subject-matter — current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment, declared training program in relation to section 165 WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013 (s93CD ACA) disputes within 7 days if there is not a factual issue to resolve
advise the appropriately qualified Agent representative about the draft referral to confirm whether there is any additional material which should be sent to the Medical Panel.
Prior to a Medical Panel referral being made, the Agent must:
- request that the Conciliation/Arbitration Officer prepare a draft referral for consideration by the Agent, the worker and their representative, if applicable
- make sure relevant information on the claim file is referred to the Medical Panel, including surveillance videos and reports which may not have been referred to in the decision but which have been made available during the conciliation process
provide any suggested changes to the medical question/s within 14 days of the draft being exchanged and document and communicate any changes to the Conciliation/Arbitration Officer.
It is important to ensure that the Medical Panel referral compiled by the Conciliation/Arbitration Officer accurately sets out the agreed facts which are in dispute.
Where appropriate, submissions should be drafted or reviewed by the appropriately qualified Agent representative before sending to the Medical Panel. A copy of the submissions must be provided to the worker or the worker's representative.
In complex cases, the Agent may also consider referring the matter to a panel solicitor to draft the submission on the Agent's behalf.
At conciliation/arbitration, Agents can make a request to the Conciliation/Arbitration Officer to refer a medical question to the Medical Panel.
Factual issues more appropriately determined by a court
In some instances the Convenor or the Medical Panel may identify that their decision / opinion will depend substantially on the resolution of factual issues more appropriately determined by a Court.
In those circumstances, where a medical question has been referred by a Conciliation/Arbitration Officer, the following may apply:
- the Convenor may decline to convene a Medical Panel
- the Medical Panel may decline to give an opinion on the medical question.
The Convenor must inform the Conciliation/Arbitration Officer in writing of this decision.
Referral to the medical panel by the court
The Court must not refer a medical question to the Medical Panel if it appears that the opinion by the Medical Panel would depend substantially on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel.
Examples of factual issues that may need to be resolved before a Medical Panel referral include:
- the period of time for which the worker was employed by the employer
- the nature of the worker’s pre-injury work duties
- whether the worker sustained an injury, including a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease
- duties included in an offer of suitable employment
- the outcome of the worker’s attempts to return to work.
Before referring a medical question to the Medical Panel, a Court can take evidence and make a finding of fact provided it assists the Court or the Medical Panel to resolve the medical question.
The Court must provide the Medical Panel with:
- a copy of the question and the Court’s answer to the question
- any reasons published by the Court about the question
- any further documents the Court considers appropriate.
The Medical Panel is bound by the finding of fact made by the Court.
The Courts must refer medical questions to the Medical Panel for an opinion when requested to do so by a party to the proceeding, provided:
- a party to the proceeding requests that a medical question be referred
- the party requesting that a medical question be referred to a Medical Panel notified the court of its intention to make this request no later than 14 days prior to the fixed for hearing of the proceeding or another time determined by the Court
- the referral, in all circumstances, does not constitute an abuse of process
- the opinion by the Medical Panel on the medical question will not depend substantially on the resolution of factual issues that are more appropriately determined by the Court.
Further information required by the medical panel
If a Medical Panel requires further information to form a medical opinion, it may request the referring person or body to provide the information within a specified period of time.
During this period the 60 day limit to provide an opinion is suspended from the date the request is made until the end date of the period specified in the requirement.
The Medical Panel cannot refer any non-medical matters back to the referring person or body.
What a medical panel may do
The Medical Panel can ask the worker to:
- meet with the Medical Panel and answer questions
- supply copies of documents the worker has which relate to the medical question
- undergo a medical examination.
If the worker unreasonably refuses to comply with Medical Panel requests or in any way hinders the examination, the worker’s right to recover compensation under the legislation or their right to weekly payments is suspended until the medical examination takes place.
If this happens, any time period between the date the worker refused and the date of the examination may be suspended and any weekly payments payable during the period of suspension are forfeited.
The Medical Panel can ask the provider for information about a medical service and if the worker consents, the medical service provider must:
- meet with the Medical Panel and answers questions and/or
- supply relevant documents to the Medical Panel.
Medical panel opinion timeline
A Medical Panel must form its Opinion within the legislative timeframes. This is 60 days after the Convenor provides the question/s and accompanying documents to the Medical Panel (this normally occurs at the same time the worker receives details of their scheduled appointment), plus up to seven days to provide the Opinion to the referring party.
This timeframe may be extended if the Panel needs additional information to form an Opinion or if additional information is provided by any parties involved in the claim. In this case, an extension of time to form an Opinion will be requested from the referrer.