Covid-19 Response

The Workers Compensation Commission continues to be focused on protecting our people and those who use our services, while continuing to deliver our important work. By keeping those who use the Commission and our staff/members in good health, cases can continue to be heard. The situation that our community currently faces with COVID-19 is unprecedented and calls for an immediate and creative response. To this end, the procedural changes outlined on this webpage have been implemented to the Commission’s operations.

These changes will be implemented during the currency of the COVID-19 crisis. Once the crisis is over, the Commission will return to standard operations. Section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) supports these changes.

I am fully committed to the principle of in-person proceedings and justice being conducted in the open. Such processes have integrity and enjoy widespread public support. They also afford the citizen the right to have their case heard and dealt with in a suitably formal process.

However, this long-held process must change due to the current coronavirus crisis. In this regard, I am balancing the competing demands of open justice against the prospect of justice being delayed. If the Commission’s decision-makers or the staff who support them become unwell with this virus, we will be unable to deliver justice and thus justice would be denied. Furthermore, I do not wish to add any further risk to the health and well-being of the lawyers and litigants who come to the Commission every day in large numbers.

I have discussed these proposed measures outlined on this webpage and in our e-Bulletins with The Law Society of New South Wales and the Bar Association. I have also consulted with the Commission’s User Group. All three groups are very supportive of these proposed changes to practices in order to help the Commission and those who use its services contend with the current COVID-19 crisis. I am indeed grateful to these groups for their sensible and pragmatic approach as well as some very practical and helpful suggestions they have made in order to enhance this change of process.

I will continue to confer with stakeholders during the currency of the revised procedures to ensure their optimal operation and will implement any further changes or enhancements that may be required. Decisions during this period will continue to be published on the Commission’s website.

The Commission is very fortunate that prior to this crisis, expenditure was made to develop the online portal and paper-lite approach to cases. This will serve us very well during this time.

I reiterate that once this crisis is over, the Commission will return to in-person proceedings. When this occurs will depend upon the best medical advice available.

Finally, I would also ask for your patience and understanding. Each of us is being called upon to be creative and to adapt to the extraordinary circumstances we all face. The Commission’s staff are working very hard to enable these changes to be implemented. I am confident that with the goodwill and co-operation of all involved, we can adapt our usual way of doing business to keep in operation the processes that deliver justice.

Judge Gerard Phillips

President

As of 23 March 2020 and until further notice, conciliations, arbitrations and mediations will be conducted by telephone. Please refer to the Protocols for conducting conciliations, arbitrations or mediations via teleconference.

In some circumstances, for example where a witness needs to give evidence, the proceedings may be conducted by audio-visual link. Requests for cases to be heard via audio-visual link will be addressed on a case by case basis. Requests for cases to be heard via audio-visual link should be emailed to registry@wcc.nsw.gov.au

All arbitration proceedings and presidential proceedings conducted by telephone or audio-visual link will be recorded.

It is expected that parties confer with their client regarding settlement well prior to the telephone conference.

A Guide for Legal Practitioners - Conducting Telephone Conciliations, Arbitrations and Mediations has also been developed to assist practitioners with conducting proceedings.

Parties will be contacted by the Commission Registry with the relevant details for the proceedings. It is expected that parties inform the Commission Registry 72 hours prior to the telephone conference of any change to participant contact details for the proceedings.

Requests for adjournments due to illness or COVID-19 issues will be considered on a case-by-case basis and should be sent by email to the Registrar at registry@wcc.nsw.gov.au.

Requests for in-person proceedings

In exceptional circumstances proceedings may be conducted in-person.

A party may apply in writing to the Commission Registry for proceedings to be conducted in-person. The application must specify why, notwithstanding the existence of a national health emergency, an in-person proceeding should be conducted.

Parties will be required to justify the persons who they seek to have present during in-person proceeding. Parties should operate to minimise the persons who are present during the in-person proceeding. Their presence must be absolutely necessary for the proceedings at hand.

The President will determine each application on a case-by-case basis.

If approval is granted for proceedings to be conducted in-person, the following procedures will apply:

• parties must only attend the venue for the proceedings at the allocated time
• parties must not enter the room for which the proceedings are conducted until the matter is called
• parties must depart the room and the venue at which the proceedings are conducted when their matter is completed
• parties must within 24 hours of the commencement of proceedings confirm that no person attending is unwell or a carrier of the COVID-19 virus

The Commission has developed several ways for dealing with medical disputes during the COVID-19 pandemic.  This approach is designed to explore the early resolution of the dispute and AMS assessment by a modality which does not require an in-person examination.

AMS assessments:

• Medical disputes for psychiatric and psychological disorders may be conducted via audio-visual lin k if possible and appropriate.
• If either party opposes assessment by video, the matter will be listed for teleconference before an Arbitrator (see below for more detail).
• Medical disputes for all other body systems will be initially listed for teleconference before an Arbitrator.
• Medical assessments not capable of being accommodated by another means will be placed in a ‘medical assessment pending list’, with a view to prioritising these matters for assessment when the restrictions due to the pandemic ends.
• The parties may, by consent, apply to restore a matter from the ‘medical assessment pending list’ at any time, for either AMS assessment or Arbitrator teleconference.
• A medical dispute will only proceed to an in-person assessment in exceptional circumstances and under strict controls

In formulating these intended approaches to AMS examinations, the Commission will continue to be guided by National Cabinet advice and Ministerial directions.

Please refer to e-Bulletin 101 for more detail of procedural changes to medical disputes in response to COVID-19.

Procedure for resolving medical disputes involving psychiatric and psychological disorders

Consultation by video is an option open to AMSs and is suited to psychiatric assessments in circumstances where an in-person assessment is unable to be conducted.

If a medical dispute is in relation to a psychiatric and psychological disorder, the matter will be listed for assessment by an AMS psychiatric specialist in the usual way.  The parties will be notified of the assessment and that it will be conducted by video.

The worker’s legal representative must ensure their client is able to participate by video, including that they have access to and the ability to operate necessary equipment.  Modern mobile phones (smartphones) with high resolution cameras are adequate and easily accessible.  These are preferable to laptops and desktop computers as the picture quality is generally superior.

If, on review of the file, the AMS is of the opinion that the medical dispute is not suitable for assessment by video, the AMS will remit the matter to the Registrar for the matter to be held in the ‘medical assessment pending list’.

If either party opposes assessment by video

If either party opposes assessment by video, the matter will be listed for teleconference before an Arbitrator.  The Arbitrator may:

• Attempt to resolve the opposition to video assessment and refer the matter to an AMS for assessment by video;

• Attempt to bring the parties to an acceptable resolution of the medical dispute; or
• Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.

Preparing for a video conference – information for workers and their representatives

The worker must undertake the following measures in preparation for a video consultation:

• The worker should be in a quiet room, where the door can be closed.  This will ensure that no children, pets or others will interrupt the assessment.
• Before commencing the assessment, the worker must inform other persons in the premises that they must not interrupt the consultation or enter the room for any other purpose unless it is an emergency.
• The room lighting must be adequate, and the light source should face the worker.
• The mobile phone (or laptop or desktop computer) should be placed on a stable surface and not held.  Movement requires more bandwidth and reduces both video and audio quality.
• The device should be plugged into an AC adapter (power point).  Battery operation should be avoided as videoconferencing equipment can quickly deplete batteries.  This is particularly relevant in psychiatric interviews, which can extend over 1.5 – 2 hours.
• Where possible, the worker should practise videoconferencing with another person beforehand to familiarise themselves with the process.
• The worker should be dressed as if he or she was going to see the doctor in person.  It is not acceptable to wear pyjamas or unsuitable attire.

The worker should ensure the camera and microphone are switched on and working prior to the video consultation.

Procedure for resolving medical disputes involving other body systems

Medical disputes for all other body systems will be initially listed for teleconference before an Arbitrator.  The Arbitrator may:

• Attempt to bring the parties to an acceptable resolution of the medical dispute;
• Determine the medical dispute, where appropriate;
• Attempt to narrow the evidence and issues between the parties and refer the dispute to an AMS for assessment by video; or
• Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.

The parties may, by consent, apply to restore a matter from the ‘medical assessment pending list’ at any time, for either AMS assessment or Arbitrator teleconference.

Medical disputes requiring urgent in-person medical assessments

If the legal representative identifies the case as being urgent and requiring an in-person medical assessment, the dispute will be fast-tracked to an Arbitrator for teleconference.  The Arbitrator may:

• Attempt to bring the parties to an acceptable resolution of the medical dispute;
• Determine the medical dispute, where appropriate;
• Attempt to narrow the evidence and issues between the parties and refer the dispute to an AMS for assessment by either video or in-person assessment; or
• Remit the matter to the Registrar to be held in the ‘medical assessment pending list’.

Procedure for an urgent in-person assessment

If the Arbitrator determines that an in-person assessment is required and the matter is urgent, the following procedure will apply to the assessment:

• The assessment will only be conducted if it can take place near the worker’s place of residence.
• The day before the physical assessment, the AMS will conduct a video consultation with the worker to take a history and address any relevant issues.
• Attendance at the in-person assessment by private vehicle or by hire car or other similar transport is strongly encouraged.  If travel is by hire car or similar, the Commission will ensure the vehicle is properly cleansed before use and the cost of the transport will be met.  Where at all possible, the worker should attend an in-person appointment alone.
• The AMS will conduct the in-person assessment in the shortest time possible and will take all necessary precautions to minimise the risk of infection to the worker, staff and themselves.
• Given that gatherings are currently restricted to two people, interpreters will be required to attend by telephone.

Medical disputes assessed ‘on the papers’

The requirement for the worker to submit to an examination by an AMS is not mandatory (see section 324(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998).

The majority of medical disputes lodged with the Commission will require examination by an AMS, either in-person or by video.

Only in rare cases, for example, where a worker has passed away, would an AMS make the assessment based solely on medical and other evidence provided by the parties.

For matters that cannot be dealt with by an AMS, they will be referred to an Arbitrator who can determine permanent impairment matters on the papers.

Processing of inbound and outbound correspondence via DX and post has been suspended.

Given all Commission staff are working remotely, correspondence lodged by document exchange and post will not be attended to.

All documents in proceedings should be lodged via the online portal.

Any other general written communications should be by email at registry@wcc.nsw.gov.au

Please utilise the online lodgement portal for electronic lodgement of forms and documents in respect of Commission proceedings.