New South Wales Consolidated Acts

WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 - SECT 121

121 Assessment of medical disputes by approved medical specialists

(1) In this section--

"approved medical specialist" means a medical practitioner who is on a list of medical practitioners approved from time to time by the Authority as approved medical specialists for the purposes of this section.

"medical dispute" means a disagreement between a worker and the employer as to--

(a) the worker's condition, or

(b) the worker's fitness for employment,

but does not include a medical dispute concerning the extent of a loss, or further loss, of hearing due to boilermaker's deafness or any deafness of similar origin.

Note : See section 72 of the 1987 Act which requires a dispute concerning the extent of any such deafness to be referred to a medical panel under section 122.

(2) A worker or employer can refer a medical dispute for assessment to--

(a) an approved medical specialist agreed to by the worker and employer,

(b) an approved medical specialist nominated by the Principal Conciliator if the worker and employer are not able to agree on the matter.

The worker and the employer can agree that some or all of the approved medical specialist's findings on the dispute are to be binding on them for the purposes of the worker's claim for compensation.

(3) The approved medical specialist is to make an assessment of a dispute referred under this section and--

(a) make findings on the dispute as required by the terms of reference, and

(b) give a certificate as to those findings.

(4) The certificate is, in any proceedings--

(a) conclusive evidence of those matters certified on which the parties agreed to be bound, and

(b) prima facie evidence of any other matters certified.

(5) The fact that court proceedings have been commenced in respect of a claim for compensation does not affect the operation of this section in respect of a medical dispute concerning the claim, except as provided by subsections (6) and (7).

(6) If a medical dispute is referred under this section after the commencement of court proceedings in respect of the compensation to which the referral relates, subsection (4) (a) does not apply to any certificate issued as a result of the referral unless the worker and the employer agree that subsection (4) (a) is to apply.

(7) Once the hearing (or part of the hearing) of court proceedings that deals with a medical dispute has commenced, a medical dispute relating to the proceedings may not be referred under this section unless the other party consents or the court grants leave.

(8) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but the specialist may not be compelled to give any such evidence.

(9) A worker or employer who is a party to an agreement under this section may apply to the Authority for registration of the agreement and any certificate given under this section, and the Authority is to register the agreement and certificate. The Authority is to provide the Compensation Court with a copy of the agreements and certificates that are registered by the Authority under this section.

(10) The regulations may make provision for or with respect to the approval of medical practitioners for the purposes of this section and the referral of medical disputes to approved medical specialists for the purposes of this section.

(11) An approved medical specialist may--

(a) consult with any medical practitioner who is treating or has treated the worker in connection with the worker's claim, 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 the fair and proper consideration of the matter.

(12) If a worker refuses to submit himself or herself for examination by the approved medical specialist to whom the medical dispute has been referred if required to do so, or in any way obstructs the examination--

(a) the worker's right to recover compensation under this Act with respect to the injury, or

(b) the worker's right to weekly payments,

is suspended until the examination has taken place.

(13) The fees of the approved medical specialist to whom a medical dispute is referred under this section are to be paid by the employer.