Dispute pathways

Legal disputes pathway

Most disputes lodged are resolved through the legal disputes pathway.

The types of disputes that go through this pathway are about entitlements to weekly compensation, medical and related expenses compensation, lump sum compensation for permanent impairment and payments in respect of the death of a worker.

The issues to resolve in a dispute could include: whether an injury has occurred; whether the injury happened at work; whether work was a substantial contributing factor to the injury; whether medical treatment is reasonably necessary; whether the injured person was a worker; which body parts were injured; and the amount of compensation payable.

The pathway begins with the use of informal dispute resolution techniques to try to resolve the dispute by agreement between the parties. Initially, this is done with the parties and their representatives attending a teleconference. If necessary, the parties may also be required to attend in person at a conciliation conference.

If the dispute is not resolved at the teleconference or the face-to-face conciliation conference, it will progress to a formal arbitration hearing where the Commission will decide the dispute.

Legal disputes pathway

1. Lodgment

Applications to resolve a dispute through the legal disputes pathway, and responses to dispute resolution applications, must be lodged with the Commission.

When to lodge a dispute application

Before a worker can lodge an application to resolve a dispute with the Commission, the worker must have first submitted a claim on their employer or their employer’s workers compensation insurer.

If the worker is not satisfied with the insurer’s decision about their claim, or any part of their claim, they may lodge an application to resolve a dispute with the Commission. The worker can also lodge an application to resolve a dispute if:

  • the insurer has failed to make a decision in relation to their claim
  • the insurer has sent a letter stating that all or part of the claim has not been accepted or is no longer accepted, or
  • they have received a letter from the insurer stating that the claim has been accepted but the worker disagrees with the amount of compensation payable.

Workers who disagree with all or part of the insurer’s decision have the right to request a review by the insurer before lodging an application with the Commission.

The person or party lodging the application is called the applicant. The person or party responding to the dispute resolution application is called the respondent.

The Commission cannot resolve all workers compensation disputes because the law requires some classes of workers to seek assistance with their claims from other agencies responsible for their administration. These classes of workers include coal miners, volunteer rescue workers and workers who suffer specified dust-related conditions.

How to lodge an application

Lodging the application to resolve a dispute (Form 2) is the first step for the applicant to apply to have a dispute resolved by the Commission. Most applicants are legally represented and the dispute resolution application is lodged by the legal representative on their behalf.

The application can be lodged by email, through the Commission’s online lodgment portal, by post or in person. More information about lodgment methods is available on our lodge a dispute page.

As a teleconference will be booked 28 days from the date the application is accepted by the Commission (unless an independent medical examination is first required) applicants must ensure they are available to participate four weeks after the lodgment date. Teleconference dates are not usually changed, so it may be best to delay lodgment, if needed, until the teleconference can be booked at a date the applicant and their legal representative are available. All parties will be notified of the date and time of the teleconference by the Commission.

All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process.

The applicant must serve a sealed copy of the application on the respondent within seven days of the dispute resolution application being registered by the Commission. All information attached to the application must also be provided to the other party. This early exchange of relevant information assists with discussions to help resolve the dispute.

The Commission’s guide to completing an application to resolve a dispute form  provides details on completing and preparing the application.

How to respond to an application

The next step in the lodgment process is for the respondent to respond to the dispute resolution application by lodging a reply to application to resolve a dispute (Form 2A). Most respondents are legally represented and the reply is lodged by the legal representative on their behalf.

The reply can be lodged by email, through the Commission’s online lodgment portal, by post or in person. More information about lodgment methods is available on our lodge a dispute page.

The dispute application will proceed even if the respondent chooses not to respond or does not respond in the required time, which is 21 days from date of registration of the dispute application.

There may be more than one respondent to proceedings and each respondent should complete and lodge a separate reply to application to resolve a dispute (Form 2A).

All information relevant to the dispute, which is not attached to the application, must be attached to the reply and provided to the other party. It may not be possible to include further information later in the dispute resolution process.

The Commission's guide to completing Form 2A: reply to application to resolve a dispute provides details on how to complete the reply to an application to resolve a dispute (Form 2A).

Legal representation

Most parties are legally represented in the Commission’s dispute resolution proceedings.

Workers are usually entitled to funding for legal assistance when their claim is disputed. Applications for legal assistance funding should be made to the Independent Legal Assistance and Review Service (ILARS). Your legal representative will usually apply to ILARS on your behalf for legal assistance funding. If you don’t have a lawyer, ILARS may also be able to assist you to locate one. ILARS is administered through the Workers Compensation Independent Review Office (WIRO). Call WIRO on 13 94 76 for more information.

The following bodies may also be able to assist you to locate a lawyer:

  • The Law Society Solicitor Referral Service (telephone (02) 9926 0333). This service helps members of the public find lawyers that are appropriate for their individual circumstances and needs.
  • LawAccess NSW is a free government telephone service that provides legal information, referrals and in some cases, advice for people who require legal assistance.

You can choose to represent yourself, but you must indicate this on the front page of your application form.

Equal access to our services at no cost

The Commission is committed to providing equal access to our services. The Commission conducts proceedings in various regional locations, in addition to our location in Sydney.

We can provide accessibility assistance to contact the Commission, to attend proceedings or our medical assessments. All Commission offices, including regional venues, provide for disability needs and we will make arrangements to ensure you have the necessary support.

We can also arrange interpreters, at no cost, to assist you with your dispute resolution application and proceedings. An interpreter will also be provided if you are required to attend a medical assessment.

Learn more about our accessibility and interpreter support.

The Commission’s dispute resolution services are free, including medical assessments.

How long does resolving a dispute take

The time taken to resolve a dispute depends on:

  • the issues in dispute
  • the standard of preparation by the parties
  • the willingness of parties to genuinely attempt resolution
  • whether a decision is appealed.

The Commission aims to resolve disputes as quickly as possible and will encourage the parties to resolve their dispute at the earliest opportunity.

Relevant resources

Practice Direction No.3: Expert evidence

Practice Direction No.7: Directions to produce documents

Practice Direction No. 8 Notices for production

Practice Direction No.9: Lodgment of late documents

Practice Direction No.12: Joinder of other parties and disputes

Practice Direction No.13: Schedule of earnings

The practice of the conciliation/arbitration process in the Workers Compensation Commission

Workers Compensation Commission Rules 2011

Forms - word

Form 2 - Application to Resolve a Dispute

Form 2 Cover - Multiple Respondents

Form 2 Cover - Section 162

Form 2 Cover - Uninsured Employer

Form 2 Cover - Additional Insurer/Scheme Agent

Form 2A - Reply to Application to Resolve a Dispute

Form 2B - Application to Join a Party to Proceedings

Form 2C - Application to Admit Late Documents

Form 2D - Application in respect of death of a worker

Notice for production

Form 18 - Wages Schedule

For PDF versions of forms click here


Guides to completing forms

Guide to Completing Form 2

Guide to completing Form 2A

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2. Teleconference

The teleconference is the first stage in the legal disputes pathway. A substantial number of legal disputes are resolved during this stage.

What to expect at a teleconference

The teleconference is the first genuine attempt to resolve a dispute through the legal disputes pathway. The teleconference is conducted by an arbitrator who will have read all the evidence on which each party relies.

The teleconference may be attended by:

  • the worker
  • the worker’s legal representative
  • the insurer
  • the insurer’s legal representative
  • the employer, especially if the employer is a self-insurer
  • an interpreter, if needed.

Once all parties are connected to the teleconference, the arbitrator will be connected to the call and will introduce the parties and explain the process. Arbitrators are required to use their best efforts to bring the parties to an acceptable resolution.

At any stage during the teleconference, there is a facility for either party to have a private conversation with their legal representative, even if they are not in the same location. The arbitrator will use the teleconference facilities to arrange this.

If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination and the Commission’s file will be closed.

If the dispute does not resolve during the teleconference, the arbitrator will decide how the matter should proceed. Sometimes, the dispute will be determined by the arbitrator after the teleconference. Otherwise, the dispute will proceed to the next stage of the resolution process, usually a face-to-face conciliation conference.

What happens during the teleconference

During the teleconference, the arbitrator will assist the parties to identify the issues in dispute and encourage them to reach an agreement about the dispute or part of the dispute. The arbitrator will confirm:

  • that all parties understand the process
  • whether everyone agrees on the facts or issues in dispute
  • any legal or threshold issues that must be decided

As the arbitrator is independent and impartial, they will not talk to any party unless all other parties are present.

Preparing for the teleconference

The parties involved in a teleconference will usually choose to participate from a quiet location where there are no distractions or background noise. Workers can participate from their home or they may prefer to attend their legal representative’s office to participate.

Only documents that have previously been lodged with the dispute resolution application, or the reply to the dispute resolution application, can be referred to during the teleconference, unless the Commission allows the addition of further documents.

Relevant resources

Practice Direction No.1: Determination of matters without a conciliation conference or arbitration hearing in person or hearing on appeal ('on the papers')

Practice Direction No.7A - Directions for production

Practice Direction No.7B - Summons to attend

Practice Direction No.9 - Applications to admit late documents

Registrar's Guideline for Standards of Conduct during Proceedings in the Workers Compensation Commission

Provision of interpreter services

Arbitrator Code of Conduct

Access and equality charter

Forms - word

Form 8 - Direction for production

Form 8A - Application for leave to service a direction for production outside the state

Form 8B - Summons to attend

SEPA 8A and 8B Order

For PDF versions of forms click here

Guides to completing forms

Guide to completing Form 8

Guide to completing Form 8B

Print

Resources

What to expect at a Teleconference (Arabic) - Workers Compensation Commission
What to expect at a Teleconference - Workers Compensation Commission
What to expect at a Teleconference (Macedonian) - Workers Compensation Commission
What to expect at a Teleconference (Mandarin) - Workers Compensation Commission
What to expect at a Teleconference (Serbian) - Workers Compensation Commission
What to expect at a Teleconference (Spanish) - Workers Compensation Commission
What to expect at a Teleconference (Vietnamese) - Workers Compensation Commission

3. Conciliation conference

A conciliation conference is a face-to-face meeting conducted by an arbitrator who will attempt to bring the parties to agreement.

When will the conciliation conference take place

If the parties do not reach an agreement at the teleconference, the matter may be scheduled for a conciliation conference.

The conciliation conference is usually within a few weeks of the teleconference. It may be delayed by up to eight weeks after the teleconference if additional documents (for example, medical records) need to be provided to the Commission.

What to expect at a conciliation conference

The conciliation conference is held at the Commission’s premises in Sydney, or at one of the Commission’s regional locations. The arbitrator who conducted the teleconference will usually also hold the conciliation conference.

The conciliation conference may be attended by:

  • the worker
  • the worker’s legal representative
  • the insurer
  • the insurer’s legal representative
  • the employer, especially if the employer is a self-insurer
  • an interpreter, if needed.

The arbitrator will explain the process, assist the parties to identify the issues in dispute, then attempt to bring the parties to an agreement about some, or all, of the issues. The parties may be allowed some time to discuss the issue between themselves.

As the arbitrator is independent and impartial; they will not talk to any party unless all other parties are present.

If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination and the Commission's file will be closed.

If the arbitrator forms the view that the dispute is not capable of being resolved by agreement of the parties, the dispute will proceed to an arbitration hearing, which will take place on the same day as the conciliation conference.

Relevant resources

The practice of the conciliation arbitration process in the Workers Compensation Commission

Registrar's Guideline for standards of conduct during proceedings in the Workers Compensation Commission

Practice Direction No.2: Adjournment of Commission proceedings and leave to introduce evidence

Practice Direction No.3: Expert evidence

Practice Direction No.7A: Directions to produce documents

Practice Direction No.9: Application to admit late documents

Provision of Interpreter Services – Service Charter

Arbitrator Code of Conduct

WCC venue policy

Security at Commission hearings

Sound recording and transcription of Commission proceedings

Print

Resources

What to expect at Conciliation and Arbitration (Arabic) - Workers Compensation Commission
What to expect at Conciliation and Arbitration - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Macedonian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Mandarin) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Serbian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Spanish) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Vietnamese) - Workers Compensation Commission

4. Arbitration hearing

An arbitration hearing is a formal proceeding where the parties will make submissions, evidence may be given by witnesses and an arbitrator will make a decision in relation to the dispute.

When will the arbitration hearing take place

The arbitrator will only proceed to an arbitration hearing if she or he forms the view that the dispute is not capable of being resolved by agreement of the parties in the conciliation conference.

The arbitration hearing is set for the same date as the conciliation conference. Three hours in total will have been assigned by the Commission for both the conciliation conference and, if needed, an arbitration hearing. Disputes are often resolved in less time.

What to expect at an arbitration hearing

After the conciliation conference ends, the arbitrator and parties will take a short break and the room will be prepared for a formal hearing. The hearing will be sound recorded. The legal representatives for each party will make submissions. Oral evidence from witnesses is usually not required.

After the arbitration hearing, the arbitrator will make a legally binding decision which finalises the dispute. Sometimes the decision will be given orally after the hearing, but more commonly it will be given in writing within the next 21 days.

Relevant resources

Guideline: Practice of Conciliation Arbitration Process in the Workers Compensation Commission

Registrar's Guideline for Standards of Conduct during Proceedings in the Workers Compensation Commission

Practice Direction No.2: Adjournment of Commission proceedings and leave to introduce evidence

Practice Direction No.3: Expert evidence

Practice Direction No.7A: Directions to produce documents

Security at Commission hearings

Sound recording and transcription of Commission proceedings

Print

Resources

What to expect at Conciliation and Arbitration (Arabic) - Workers Compensation Commission
What to expect at Conciliation and Arbitration - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Macedonian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Mandarin) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Serbian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Spanish) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Vietnamese) - Workers Compensation Commission

5. Agreements and decisions

A dispute may be finalised or resolved in three ways: by agreement between the parties; by the applicant discontinuing the application; or by the arbitrator making a decision.

When an agreement is reached between parties

The parties may come to an agreement about a dispute at any time before the dispute is determined by an arbitrator. Parties may file consent orders so the Commission can endorse the terms of the resolution and issue a formal record of the outcome.

When a settlement is reached at the teleconference or conciliation conference

If a settlement is reached at the teleconference or conciliation conference, the arbitrator will discuss the orders to be made with the parties and prepare a Certificate of Determination setting out the orders the parties consented to.

When the dispute resolution application is discontinued

The applicant may discontinue an application at any time. An applicant can decide to discontinue proceedings or any part of the proceedings by lodging an election to discontinue proceedings (Form 14B), with assistance from the guide to completing Form 14B. The applicant must send this form to all the other parties involved in the dispute.

At any time, all parties involved in a dispute may reach an agreement and decide to discontinue proceedings or any part of proceedings. They must let the Commission know by lodging an agreement to discontinue proceedings (Form 14A), with assistance from the guide to completing Form 14A. Copies of the form must be sent to all parties.

When dispute resolution proceedings are discontinued, the Commission will close its file. This means no further action will be taken in the proceedings. A party may wish to bring fresh proceedings, for example, when further relevant evidence is obtained.

When a decision is made by an arbitrator

If no agreement is reached between the parties, an arbitrator will determine the dispute and the Commission will issue a Certificate of Determination to all parties, setting out the arbitrator’s decision and reasons for their decision.

The Commission is committed to the publication of its decisions. To find a decision made by the Commission, visit the find a decision page.

Relevant resources

Forms

Form 14A - Agreement to discontinue proceedings

Form 14B - Election to discontinue proceedings

Certification of determination - consent orders

Guides to completing forms

Guide to Completing Form 14A

Guide to Completing Form 14B

Policy on publication of decisions in the Workers Compensation Commission

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6. Appeal

A party may appeal against a decision by an arbitrator.

When is an appeal possible?

Any party in a legal dispute can appeal the arbitrator’s decision if they believe the decision contains an error of fact, error of law or an error in exercising a discretion. The appeal process exists to correct these errors. The appeal is not a rehearing of the dispute resolution proceedings.

An appeal can only be made if the amount of compensation at issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against.

How to appeal

An appeal against a decision of an arbitrator must be made by lodging an appeal against decision of arbitrator (Form 9). The appeal application will not be accepted or allowed to proceed unless the Registrar is satisfied that it meets procedural requirements.

Either party may appeal. Appeals are determined by the Commission’s presidential members.

An appeal is made in accordance with practice direction 6.

How does an appeal work?

An appeal is referred to the President or a deputy president, referred to as presidential members, for determination. The presidential member may give directions as to how the appeal is to proceed.

Presidential members may determine appeals by reference only to the written submissions lodged by the parties. The presidential member may convene a teleconference or a formal hearing.

The presidential member can confirm or revoke an arbitrator’s decision. If the original decision is revoked, the presidential member may replace the decision with a new decision or refer the dispute to an arbitrator to make a new determination. In appeals about decisions concerning the degree of permanent impairment, the presidential member may direct that the matter be referred for assessment by an approved medical specialist.

If either party is aggrieved by the determination made by a presidential member, they can appeal to the NSW Court of Appeal on the grounds that the law was applied incorrectly.

Relevant resources

Form 9 - Appeal Against Decision of Arbitrator

Guide to completing Form 9

Form 9A - Notice of opposition to appeal against decision of Arbitrator

Guide to completing Form 9A

Form 9 Schedule - Additional Respondent Insurer Scheme Agent Schedule

Practice Direction 6  - Appeal against a decision of an Arbitrator

On appeal decisions

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