BACKGROUND
Section 329 Workplace Injury Management and Workers Compensation Act 1998 provides an avenue for a medical dispute which has been referred for assessment, to be referred again for further assessment or for reconsideration.
Although ‘further medical assessment’ and a ‘reconsideration’ are not defined in the Act, the respective rights to seek relief under either are discussed in section 329.
Section 329(1A) notes that a matter referred for assessment may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
This is distinguished from section 329(1) which discusses referral for further assessment. Section 329(1)(a) provides that a referral for a further assessment can only be made by the President ‘as an alternative to appeal against the assessment as provided by section 327’, while section 329(1)(b) provides that a referral for further assessment can be made by ‘a court or the Commission’.
Section 327 provides the basis for an appeal against a medical assessment is ‘only in respect of a matter that is appealable under this section and only on the grounds of appeal under this section’. A matter is so appealable if it is a matter ‘as to which the assessment of a medical assessor certified in a medical assessment certificate (‘MAC’)…is conclusively presumed to be correct…’.
Section 326 notes that such matters include the degree of permanent impairment, any applicable proportion of that impairment due to a pre-existing condition or abnormality, whether impairment is permanent, and whether the degree of permanent impairment is fully ascertainable. The relevant grounds for appeal are outlined at section 327(3)(a)-(d).
The Act does not provide any substantive guidance as to what is to be considered when submitting a reconsideration application or when determining whether a reconsideration or an appeal is the appropriate relief.
Section 57 of the Personal Injury Commission Act 2020 is also relevant in that this grants the Personal Injury Commission (‘PIC’) power to ‘reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission…’.
FURTHER ASSESSMENT, RECONSIDERATION OR APPEAL?
Given the apparent overlap in the relief offered between a referral for further medical assessment, an application for reconsideration, and an appeal of a MAC, it can be difficult to know when to go with one avenue or the other.
Section 327(6) echoes section 329(1)(a) and notes that the President may refer a medical assessment for further assessment under section 329 ‘as an alternative to an appeal…but only if the matter could otherwise have proceeded on appeal under this section’.
The note attached to this section provides that the President also has the power to refer a medical assessment back to the medical assessor for reconsideration (echoing section 329(1A) but clarifies that the power to refer for reconsideration can be exercised ‘whether or not the medical assessment could be appealed under this section’.
This then suggests that at a general level, a referral for further medical assessment per section 329(1)(a) or (1)(b) may be sought from the President in circumstances where the matter could otherwise have proceeded on appeal. The immediate effect would appear to be that both a referral for further medical assessment and an appeal, are bound by the threshold requirements of sections 327(2) and 327(3).
Conversely, an application to the President for a referral for reconsideration may be made whether or not the medical assessment was otherwise appealable.
But, neither the note in section 327(6) nor section 329(1A) detail what is required from a prospective applicant if they wish to succeed with a reconsideration application; the President has broad discretionary power when deciding to refer an assessment for reconsideration.
PIC ‘Practice Direction 7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes’ provides guidance as to the substance and form of a reconsideration application. Applications are to be lodged by letter setting out the grounds for reconsideration and the orders sought. The submissions must be divided into numbered paragraphs with sub-headings and note each ground for reconsideration, any circumstances justifying delay in the application (if any) and why a decision should be reconsidered rather than appealed.
Since this requires an outline as to why an appeal is not preferable, this still does not assist a prospective applicant in determining when a reconsideration is appropriate, nor what criteria need be considered to succeed.
How, then, can one know whether the President is likely to be persuaded by a reconsideration application or whether an appeal is a more appropriate choice? The case law provides useful guidance on these questions.
SCOPE OF A REFERRAL FOR RECONSIDERATION
Roche DP noted at [58] in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 that section 329 ‘provides no guidance as to how or when it may be used’, but it must always be used in accordance with the aims of the workers compensation legislation with its exact scope ‘determined on a case-by-case basis’.
Malpass AJ in Read v Liverpool City Council [2007] NSWSC 320 noted that the intention of section 329 may have been to enable relief when section 327(c) or (d) could not be established on the evidence, but that the ‘dictates of justice require a further referral for assessment’.
DP Roche also noted in Milosavljevic that whether the ‘dictates of justice’ require that a further referral for reconsideration be made depends upon a consideration of the facts of each matter.
Samuel v Sebel Furniture Limited [2006] NSWWCPD 141 (‘Samuel’) was decided in the context of the since-repealed section 350(3) but continues to be informative.
ADP Roche in Samuel noted at [92] ‘[i]f the reconsideration seeks to rectify an error of law or fact made in the first determination an appeal will usually be the proper procedure to follow.’ ADP Roche also agreed with the first instance decision-maker that ‘the appeal provisions in section 352 are a relevant consideration in determining whether to allow a reconsideration…’.
Parker SC ADP held at [26] in Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29, applying principles in Samuel, that the Commission has a wide discretion to reconsider its previous decisions, that discretion must be exercised fairly with due regard to relevant considerations including the reason and extent for any delay, one of the relevant factors in exercising the discretion is the public interest in the finality of litigation, reconsideration may be allowed if new evidence is later obtained which could not have reasonably been obtained at the time of the first decision and would have been likely to lead to a different result and a reconsideration will not usually be the preferred provision to be used to correct errors of fact, law or discretion.
It was held at [29] that the ‘discretion to reconsider is to be exercised for reasons and with a view to advancing the objects of the [Personal Injury Commission Act 2020]. It is not, in my view, intended to be a substitute for the rights of appeal given by section 353 of the 1998 Act’. Section 3 of the 2020 Act identifies its objects as including the just, quick and cost-efficient resolution of real issues in proceedings with as little formality as possible and to ensure decisions are timely, fair, consistent and high-quality.
The recent decision of DP Elizabeth Wood in Inner West Council v McQuade [2025] NSWPICPD 32 (10 April 2025) provides a useful summary of the relevant authorities.
At [75] DP Wood summarised Roche ADP’s observations in Target Australia Pty Ltd v Mansour [2006] NSWWCPD 286 that ‘the operation of section 329 is not restricted to the circumstances set out in section 327(6) but is in broad unlimited terms without any need for preconditions to be satisfied…’.
Roche ADP also noted ‘…the passing of section 329 ensures that, where procedural fairness has not been accorded to a party by the Appeal Panel, the Commission may correct that lapse when the matter is returned to it for determination’.
At [79] DP Wood noted that DP Roche in Milosavljevic also ‘agreed that the fact that a matter has previously been referred to a Medical Assessor does not of itself prevent a further referral’.
At [80], the findings of Snell AP in Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 were summarised as including that ‘…an order can be made pursuant to section 329(1)(b) of the 1998 Act, notwithstanding that there has been a [Medical Appeal Panel] decision…’.
Snell AP also noted ‘…the primary vehicle for correcting error, in an assessment by a [Medical Assessor], is the provisions of sections 327 and 328…In most cases where such error is alleged, the appropriate means of challenging the assessment of a [Medical Assessor] will be the lodgment of a medical appeal…rather than seeking a further referral pursuant to section 329(1)(b)’.
DP Wood summarised her synthesis of the authorities at [83], to provide a useful guide for what principles apply when section 329 is under consideration:
(a) the Commission has jurisdiction to make an order referring a matter for further assessment pursuant to 329(1)(b), notwithstanding that an Appeal Panel decision has been made (Adriaansen);
(b) 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);
(c) section 329 is in broad unlimited terms not needing preconditions to be satisfied and is not restricted to the circumstances described in s 327(6) (Mansour, Milosavljevic);
(d) section 329(1)(b) allows the Commission to correct the failure to afford a party procedural fairness by an Appeal Panel and s 329 can be used where no grounds of appeal are made out, but the dictates of justice require a further referral (Mansour, Milosavljevic, Adriaansen);
(e) 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 s 43(3) of the 2020 Act (Mansour);
(f) a referral for further assessment does not have to be conducted by the same Medical Assessor who performed the earlier assessment (Mansour);
(g) while s 329(1)(b) is in broad unlimited terms, the section must be read in the context of the legislation (Milosavljevic, Adriaansen), and
(h) the scope of s 329 must be determined on a case-by-case basis and will always be the subject of the Commission’s jurisdictional limits (Milosavljevic, Adriaansen).
KEY TAKEAWAYS
While the precise circumstances where the President will be persuaded to exercise their discretion following a reconsideration application remain somewhat nebulous, the case law continues to provide useful starting points.
In circumstances where either an appeal or a reconsideration may be explored a reconsideration will not usually be the preferred vehicle to correct errors of fact, law or discretion. However, the President may be persuaded to exercise the discretion to refer for reconsideration if submissions can explain why a reconsideration would better advance the objects of the Personal Injury Commission Act 2020 than an appeal.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.