Workers Compensation Commission

The Workers Compensation Commission consists of a President, two Deputy Presidents, a Registrar and Arbitrators (one or more of whom may be appointed as Senior Arbitrators).

All applications are initially referred to the Registrar of the Commission, who then allocates the dispute to a member of the Commission.

Disputes about injury management, failure to commence provisional payments, payment of medical expenses, and claims for weekly benefits for a period of less than 12 weeks will usually be allocated to the Registrar to be dealt with under Expedited Assessment procedures: sections 295 and 296 of the 1998 Act.

The Registrar has power to determine a claim for past weekly compensation for a period of less than 12 weeks: sections 304A and 304B of the 1998 Act.

Disputes involving claims for weekly benefits for more than 12 weeks, and/or lump sum compensation where liability is in issue, will usually be referred to an Arbitrator for conciliation and/or arbitration.

Matters where the only issue is the degree of permanent impairment resulting from an injury will be referred to an Approved Medical Specialist (AMS) for a binding assessment of the section 66 entitlement.

Parts 4, 5 and 6 of Chapter 7 of the 1998 Act apply to the determination of compensation disputes.

Legal Costs

Section 341 of the 1998 Act provides that parties to proceedings in the Commission must bear their own costs.

Therefore, regardless of whether or not the applicant worker succeeds in the Commission, the worker will not be entitled to payment of his or her legal costs by the insurer.

Workers, however, may apply for legal aid from the Independent Legal Assistance Referral Scheme (ILARS) to cover their costs. Only matters which have a reasonable prospect of success will be granted legal aid. Applications for legal aid are usually made by a solicitor on behalf of an injured worker, because the solicitor will be able to identify the legal issues and other factors that ILARS considers when making its decision whether or not to grant aid.

Referral of a dispute to the Commission

The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer. section 43(3) of the 1987 Act.

Who may refer a dispute?

Any party to a dispute about a claim can refer the dispute to the Registrar for determination by the Commission, except that only the injured worker can refer a dispute about permanent impairment compensation: section 288 of the 1998 Act.

However, there are some prerequisites. Section 289 restricts matters a worker can refer to the Commission to duly made claims which have been rejected or not determined as required by the Act; and section 289A restricts the matters that an employer/insurer can rely on to those matters previously included in a dispute notice, or in letters regarding offers of settlement for lump sum claims.

The Commission may not hear or otherwise deal with any dispute unless properly referred in accordance with section 289.

A dispute about a claim for weekly payments or medical expenses cannot be referred to the Commission unless the person on whom the claim is made has:

    • disputed liability (wholly or in part), or
    • failed to determine the claim as and when required by the 1998 Act: section 289(1).

A dispute about a claim for permanent impairment compensation cannot be referred to the Commission unless the person on whom the claim is made has:

    • wholly disputed liability for the claim, or
    • made an offer of settlement to the worker pursuant to the determination of the claim and one month has elapsed since the offer was made, or
    • failed to determine the claim as and when required by the 1998 Act: section 289(3). (Failing to make a reasonable offer of settlement constitutes failure to determine the claim).

A dispute about a claim for property damage cannot be referred to the Commission unless the person on whom the claim was made has disputed liability (wholly or in part) or 28 days has elapsed since the claim was made.

If an insurer has failed without reasonable excuse to determine a claim, and the matter is referred to the Commission for determination or assessment, the Registrar may impose an ‘administration fee’ of $250 payable by the insurer to the The Authority: section 284.

Section 289A provides that a dispute cannot be referred for determination by the Commission unless it concerns only matters (issues) previously notified as disputed.

A matter is taken to have been previously notified as disputed if:

    • it was contained in a notice of dispute under section 74 of the 1998 Act or section 54 of the 1987 Act after a claim was made or a claim was reviewed; or
    • it concerns matters raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, relating to an offer regarding settlement of a claim for lump sum compensation.

The Commission may deal with matters not previously notified as disputed if it is in the interests of justice to do so: Section 289A and 289(4).

Because the Commission can refuse to deal with any matter not previously raised in a dispute notice or in correspondence regarding settlement offers, it is importantl that the insurer’s dispute notice provides detailed information regarding the reasons for the dispute including the evidence relied on. The insurer must respond to all allegations and claims made in the worker’s notice of claim. If an insurer fails to identify relevant issues, does not respond to allegations made, or does not deal with all aspects of the claim that are disputed, it may (and very likely will) be prevented from raising those issues or disputing those allegations or claims in the Commission.

Part 6 of this Guide contains a useful table of the most common grounds for declining liability and the corresponding legislative provision. Insurers may use the table as a checklist to ensure that all relevant issues are clearly identified in the dispute notice.

Obligation to exchange information on referral of dispute

Each party to a dispute in the Commission is expected to engage in ‘a full and frank exchange of information upon which they intend to rely’ prior to commencing proceedings in the Commission.

When an insurer disputes a claim, it is required to provide the worker with copies of all relevant documents in its possession, not just those documents it intends to rely on. Additional evidence will only be allowed in special circumstances: section 290.

Types of dispute applications

Depending on the type of dispute, a matter will come before the Commission by the lodgement of either:

    • an application for interim payment direction
    • an application for expedited assessment
    • an application to resolve a workplace injury management dispute
    • an application to resolve a dispute
    • a miscellaneous application.

Matters for Expedited Assessment

Interim Payment Directions

The Registrar may, pursuant to section 297 of the 1998 Act, issue an interim payment direction requiring an insurer to pay compensation to a worker, when there is a dispute concerning:

    • failure to commence provisional payments following initial notification of injury;
    • failure to determine a claim medical expenses or weekly payments compensation within the prescribed time; or
    • a dispute notice has been issued for such claims.

However, an interim payment direction cannot be made if the dispute concerns a work capacity decision by the insurerregarding the calculation of any weekly payment that might be payable, or the reduction or discontinuance of weekly payments: section 297 (1A).

Part 5 of Chapter 7 of the 1998 Act, the WCC Rules 2011 (rules 9.2 to 9.6) and Interim Payment Direction Guidelines set out the procedure for obtaining an interim payment direction.

The worker commences proceedings by lodging an application for interim payment direction with the Commission. The worker must attach information and other documents required by the approved form of the application and serve an unsealed (i.e. it does not bear the Commission seal) copy of the application and supporting documents on the employer and insurer on the same day that the application is lodged with the Commission.

Each interim payment direction (or further interim payment direction) for weekly payments can be for any period up to 12 weeks, of which up to 10 weeks can be prior to the date of the direction: section 298 of the 1998 Act.

An interim payment direction for medical expenses can be for an amount up to $7,500.

Payments made by a respondent pursuant to an interim payment direction are made without admission of liability.

The Guidelines provide that interim payment directions for weekly benefits and medical expenses are primarily intended for cases where:

    • an insurer has failed to commence provisional payments and there is no reasonable excuse for non-payment, or where the claim has not been determined within 21 days
    • the dispute concerns medical expenses under $7,500
    • the dispute concerns weekly benefits and it is the first application to come before the Registrar and a question arises as to the validity or correctness of the dispute notice.

There is a presumption in favour of the worker that an interim payment direction for weekly payments should be made, unless it appears to the Registrar that:

    • the claim has minimal prospects of success
    • the worker has returned to work
    • the injury was not reported by the worker as required by section 44 (early notification of workplace injury for the purposes of injury management)
    • insufficient medical evidence is available concerning the period of incapacity of the worker, or
    • a section 74 notice disputing liability has been served.

The Guidelines provide that an interim payment direction for weekly compensation should not be made when:

    • a reasonable excuse for not commencing provisional payments has been notified to the worker by the insurer
    • the provisional liability entitlements have been exhausted and the worker has not provided further evidence of his or her incapacity
    • the worker has not provided information that the insurer has requested
    • the worker has unreasonably failed to comply with an injury management plan and the insurer has notified the worker what the worker must do to comply with the injury management plan.

The Registrar must presume that an interim payment direction for medical expenses is warranted if:

    • an injury management plan for the worker is in place or the insurer has accepted that the worker has received an injury, and
    • the Registrar is satisfied that the treatment or service is reasonably necessary:
    • to prevent a deterioration of the worker’s condition, or
    • to promote an early return to work, or
    • to relieve significant pain or discomfort, or
    • for such other reason as may be prescribed by the regulations: section 297(4).

Before deciding whether to make an interim payment direction, the Registrar may:

    • consider the information in the application and the insurer’s reply
    • consider the views of all parties
    • if necessary, request additional relevant information
    • schedule a teleconference within 14 days of the referral of a dispute, but if the Registrar is satisfied that sufficient information has been supplied, the Registrar may determine the application without holding a teleconference.

Failure to comply with interim payment direction

A person who fails to comply with an interim payment direction is guilty of an offence. The maximum penalty is $5,500: section 300.

Revocation of interim payment direction

The Registrar can revoke an interim payment direction at any time and when that occurs the obligation to make payments under the direction ceases. However, the revocation does not affect the requirement to make payments before the revocation: section 299. That is, an insurer can cease making payments only in respect of the period after the revocation. The period before the revocation must still be paid.

Recovery of payments

If the Commission subsequently determines that a person who was directed to make interim payments of compensation was not in fact liable to pay the compensation, the worker is not required to refund those payments, unless the Commission is satisfied that the claim was fraudulent or made without proper justification: section 304.

If there is another person whom the Commission determines to be liable (e.g. another employer or insurer), that other person can be ordered to reimburse the person who made the payments.

Workplace Injury Management Plans

The Registrar also has power to deal with disputes concerning failure by a party to comply with an obligation under the workplace injury management provisions of the 1998 Act: sections 305 to 310 and Commission Rules 9.7.

The Registrar can:

    • attempt to conciliate the dispute – i.e. help the parties to agree on how the dispute can be resolved, or
    • direct that an injury management consultant or other suitably qualified person (paid for by the insurer) conduct a workplace assessment in connection with the dispute, or
    • refer the dispute to an arbitrator, or
    • make a recommendation that a party take specified action (such as complying with an obligation pursuant to an injury management plan, or providing suitable employment).

(The use of the word ‘or’ implies that the Registrar can only deal with the dispute in one of the above ways. If this is the case, then the Registrar would not be able to make a recommendation for a party to take specified action and then to appoint an injury management consultant, but must do one or the other.)

If an injury management consultant is appointed, the consultant must contact the parties and conduct a workplace assessment within 7 days of the Registrar’s direction, and must report to the Registrar within 7 days after the assessment is conducted.

Compliance with Registrar’s recommendations

Within 14 days of the Registrar making his recommendation (or such longer period as the Registrar allows) a party to the dispute on whom a recommendation is made must either:

    • comply with the recommendation, or
    • request the Registrar to refer the dispute to the Commission for determination: section 308.

If a worker fails to comply with the Registrar’s recommendation and does not request referral to the Commission,

the worker has no entitlement to weekly payments of compensation during any period that the failure to comply with the recommendation continues: section 308(2).

If an employer fails to comply with the Registrar’s recommendation and does not request referral to the Commission,

the employer’s insurer can recover from the employer the amount of the weekly compensation paid by the insurer during the period that the failure to comply with the recommendation continues: section 308(3). In other words, the employer is directly liable for payment of compensation during the period of its non-compliance and cannot recover the payments from the insurer.

Employers – representation and admissions

At any conference or hearing before the Registrar in connection with a dispute regarding failure to comply with an injury management obligation:

    • an employer is entitled to separate representation if the employer requests separate representation, and
    • an employer is not prevented by the terms of the insurance policy from making any admission of liability in respect of the injury or claim concerned.

This means that the employer can appear at the conference or hearing, independently of the insurer, and can make admissions even though the policy of insurance normally provides that an insured employer cannot do so without the consent of the insurer. Evidence of any admission made by the employer, however, is not admissible in other proceedings before the Commission: section 309.

If the dispute is referred to the Commission for determination, the Commission has the power to make an order with respect to any matter than can be the subject of a recommendation by the Registrar: section 310. That is, the Commission can compel the doing of something that a Registrar can only recommend.

Power of Registrar to determine weekly compensation claim

Division 2A of Part 5 of the 1998 Act gives the Registrar and/or the Registrar’s delegate, power to determine past closed period claims for weekly benefits not exceeding 12 weeks.

The power exercised under Division 2A is different to the power exercised under Division 2 (the power to make interim payment directions). An interim payment direction does not involve a determination of liability. It is a direction made without admission of liability on the part of the respondent and does not prejudice the respondent in the event of future claims. On the other hand, Division 2A involves a determination by the Registrar of liability and can affect future claims.

A dispute concerning a past closed period of 12 weeks or less must be lodged on an Application for Expedited Assessment – and must attach the documents on which the applicant intends to rely. The applicant must serve an unsealed (i.e. it does not bear the Commission seal) copy of the application on the respondent on the same day as the application is lodged with the Commission. Within 7 days of service of the application, the respondent insurer must file and serve its reply attaching the information and documents on which it intends to rely. The reply must be served on the applicant on the same day that it is lodged with the Commission.

Before determining the dispute, the Registrar may:

    • consider the views of all parties
    • if necessary, request additional relevant information
    • schedule a teleconference within 14 days of the referral of a dispute, or
    • following advice from the parties, and if satisfied that sufficient information has been supplied, determine the application without holding a teleconference.

When the dispute has been determined, the Registrar will issue a Certificate of Determination and a brief statement of reasons.

Any appeal against the Registrar’s determination under Division 2A lies, with leave, to the Commission constituted by a Presidential member in accordance with section 352 of the 1998 Act. This means that leave to appeal will not be given unless the amount of compensation at issue is at least $5,000 and 20% of the amount awarded.

Matters other than expedited assessment

Application to Resolve a Dispute

Disputes regarding weekly compensation exceeding a 12-week period, medical expenses exceeding $7,500 or permanent impairment compensation are commenced by the lodgement of an application to resolve dispute.

Weekly compensation disputes that may be dealt with by the Commission are limited to those claims for which the insurer has declined liability. The Commission has no jurisdiction to determine a dispute that is inconsistent with an insurer’s work capacity decision in relation to weekly payments.

The Workers Compensation Commission Rules 2011 provide that the applicant must lodge with the application all information and documents upon which the applicant proposes to rely that are in the possession of the applicant at that time: Rule 10.3. If the applicant is the worker, there must also be attached:

  • a written statement of the evidence to be given by the worker, and
  • if the claim is for weekly compensation, a schedule of all weekly compensation paid including the amounts and periods.

Within 7 days of the Registrar registering the application, the applicant must serve sealed copies on the employer and its insurer, and any other party to the proceedings: Rule 10.2(5) and (6).

Service can be by personal delivery, fax, post, DX (Document Exchange) or email: Rule 8.4

The respondent insurer must lodge with the Commission, and serve on the applicant within 21 days of registration of the application, a respondent reply in the approved form, and also all information and documents on which the respondent proposes to rely: Rules 10.3 and 10.4.

The applicant and respondent may not introduce evidence that has not been lodged and served with the application and reply, subject to certain exceptions (e.g. it is in the interests of justice to admit the late evidence, or the evidence was obtained via a direction for production or a notice to produce and the information could not have been obtained earlier).

Except with the leave of the Commission, the respondent may not raise a worker’s failure to notify an injury as required by the Workers Compensation Act as an issue in the reply if that issue had not been included in a section 74 dispute notice.

Referral to arbitrator

If the only issue in dispute is the degree of the permanent impairment resulting from an injury, the Registrar will refer the claim directly to an Approved Medical Specialist (AMS) for assessment, without any involvement by an arbitrator.

But if the insurer’s reply raises issues regarding liability, the Registrar will refer the claim to an Arbitrator for conciliation and/or arbitration. The types of issues that will be referred to an Arbitrator will include: whether or not the applicant was a worker, whether or not the applicant sustained an injury, whether employment was a contributing factor to the injury, whether section 11A applies (in relation to psychiatric injury), and there is a claim for medical expenses exceeding $7,500.

The Commission will issue a timetable setting out when the application is to be served, when a reply must be filed, and the date and time for a teleconference.

During the teleconference the Arbitrator will try to bring the parties to a settlement, but if a settlement is not possible the Arbitrator will canvass the views of the parties as to whether the matter may be determined ‘on the papers’ (i.e. on the basis of the documents that have been filed at that time and without a formal hearing).

If the Arbitrator decides to proceed with a determination ‘on the papers’, the determination must be made as soon as practicable and the decision must be in writing, contain a statement of the reasons for the decision, and be forwarded to all parties.

If the Arbitrator decides against a determination ‘on the papers’, the Arbitrator will identify any legal or threshold issues and, if appropriate, determine them immediately, establish whether there are any agreed facts or issues and, confirm the arrangements for the conciliation conference and hearing.

At the subsequent conciliation conference, the Arbitrator will again endeavour to bring the parties to a settlement, but if this is not possible the matter will immediately proceed to an arbitration hearing before the same Arbitrator and on the same day.

The arbitration hearing will be conducted with as little formality as possible. Cross examination of witnesses will be discouraged, as will the calling of expert witnesses to give oral evidence.

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