e-bulletin No. 83 February 2019
On 23 January, I was sworn in as a Judge of the District Court and as the new President of the Workers Compensation Commission.
I pay tribute to my predecessor, the Hon. Greg Keating, who has left an organisation that is very efficient and highly regarded. His legacy is one of achievement and success.
In the past 2 weeks, I have been meeting as many stakeholders as possible and hearing their views on the Commission. I have been delighted with the positivity of everyone I have spoken to and look forward to working with you all.
I hope you find this e-bulletin to be of assistance in your daily work.
Amendments to the workers compensation commission rules 2011
The Workers Compensation Commission Rules 2011 have been amended to improve procedures to be followed in proceedings before the Commission, and to reflect the expanded jurisdiction of the Commission brought about by dispute resolution changes introduced by the Workers Compensation Legislation Amendment Act 2018.
The rule amendments incorporate the Commission’s power to deal with work capacity disputes by way of expedited assessment and interim payment direction. The Commission’s practice directions, forms, and guides to completing forms have also been updated to reflect the legislative changes, as outlined in e-Bulletin No. 82.
A schedule of the rule amendments appears at the end of this e-Bulletin and apply from 10 January 2019.
The Commission's rules are available in the legal resources section of the website.
Changes to practice and procedure
Changes to practice and procedure, brought about by the Workers Compensation Legislation Amendment Act 2018, were outlined in e-Bulletin No. 81. To recap:
Work capacity decision disputes
The Commission has jurisdiction to resolve work capacity disputes that were made on or after 1 January 2019.
Parties should lodge the following application form, depending on the nature of the dispute:
|Nature of dispute||Form type|
|Work capacity decision only||Form 1|
|Work capacity decision and past medical expenses less than $9,250.50||Form 1|
|Work capacity decision and any other liability or quantum of compensation||Form 2|
The Commission will triage applications on receipt and will redirect matters to the appropriate stream if the incorrect form is completed.
Form 1 applications will be referred for resolution under the expedited assessment process, with an initial teleconference to be scheduled 14 days after registration. Form 2 applications will be scheduled for initial teleconference 28 days after registration.
Parties are reminded that the Commission’s dispute resolution process is front-end loaded and applicants should be ready to proceed to determination of the dispute on lodgment of an application. Adjournment applications will only be considered in accordance with Practice Direction No 2 (Adjournment of Proceedings), noting that failure to properly prepare a matter is not a sufficient reason for an adjournment.
Permanent impairment disputes
Permanent impairment disputes can now be determined by an Arbitrator without the need for a medical assessment by an Approved Medical Specialist. In addition to disputes regarding liability for permanent impairment, quantum only permanent impairment disputes will be referred to an Arbitrator for an initial teleconference where:
- there has been a failure to determine by the insurer;
- the claim by the worker, and the offer by the insurer, do not cross a threshold, that is:
|Worker's claim||Insurer's counter offer|
|11 to 14 per cent||11 to 13 per cent|
|15 to 20 per cent||15 to 9 per cent|
|21 to 30 per cent||21 to 29 per cent|
|31 per cent or more||31 per cent or more, but less than the quantum claimed|
Arbitrators may refer medical disputes to Approved Medical Specialists for assessment.
Reconsideration of medical assessment certificates
Section 39 of the Workers Compensation Act 1987 provides that a worker has no entitlement to weekly payments of compensation after an aggregate period of 260 weeks in respect of which a weekly payment has been paid or is payable. This provision does not apply to an injured worker whose injury results in permanent impairment of more than 20%. Further, section 39 does not apply to certain injured workers whose degree of permanent impairment is not yet fully ascertainable.
The Commission has received numerous applications for medical assessment where the only medical dispute before the Approved Medical Specialist (AMS) is whether the degree of permanent impairment of the injured worker is fully ascertainable, for the purposes of the operation of section 39.
The assessment by an AMS regarding whether the degree of permanent impairment is fully ascertainable is conclusively presumed to be correct.
Applications are now being received for reconsideration of the original AMS assessment in circumstances where a party has new evidence that the degree of permanent impairment is now fully ascertainable.
If satisfied that the reconsideration application should proceed, the Registrar will refer the matter to the AMS to again assess whether the degree of permanent impairment of the injured worker is fully ascertainable.
Assessment of workers by AMSs will be conducted in accordance with the usual timetable. It is therefore incumbent on the party seeking reconsideration to serve all new evidence at the earliest opportunity. It is also incumbent on the other party to seek any new evidence they may wish to rely on without delay.
If the original AMS assessment was for the single issue of whether the degree of permanent impairment is fully ascertainable, the following further matters will only be referred for assessment with the consent of the parties:
- The degree of permanent impairment of the worker as a result of an injury;
- Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion;
- Whether impairment is permanent.
Standing Committee on Law and Justice report
On 1 May 2018, the Standing Committee on Law and Justice resolved that the 2018 review of the workers compensation scheme would focus on the feasibility of a consolidated personal injury tribunal for CTP and workers compensation dispute resolution.
The committee issued its report on 12 February 2019, which is available on the Parliament of NSW website (www.parliament.nsw.gov.au). The NSW Government will now consider and respond to the committee’s report.
Judge Gerard Phillips