administrative decisions tribunal 12 june 2013

WORKERS COMPENSATION SCHEME,RECENT CHANGES ANDDISPUTE RESOLUTION

Rodney ParsonsDeputy Registrar

Workers Compensation CommissionPhone: 8281 6403

Email: [email protected]

ADMINISTRATIVE DECISIONS TRIBUNAL12 June 2013

OVERVIEW

1. Entitlement to workers compensation

2. Disputing liability

3. Recent legislative changes

4. Dispute resolution (focus workplace injury management)

5. General provisions

STATE OF CONNECTION

• All States and Commonwealth enacted own workers compensation legislation

• Test for jurisdiction – state of connection (since 1 January 2006)

• Where worker usually works, or

Where worker usually based, or

Where employer principally located

WORKERS COMPENSATION IN NSW

• Workers Compensation Act 1987

• Workplace Injury Management and Workers Compensation Act 1998

• Workers Compensation Regulation 2010

• WorkCover Guidelines

WORKER, INJURY AND COMPENSATION

• A worker who has received an injury shall receive compensation from the worker’s employer

• Includes compensation for dependants in the case of death of a worker

Who is a worker?• Defined in section 4 of 1998 Act

• Contract of service (not contract for services)

• Legal tests: consideration, intention to create legal relations, mutual obligations

• Non-work relationships: family, social, domestic, volunteers, contractors, company directors


Who is a worker?• Indicia:

– Control– Remuneration– Equipment– Obligation to work– Timetable & holidays– Deduction of tax– Right to delegate work– Right to dismiss person– Right to dictate hours of work and place of work– Right to exclusive services of person engaged


Who is a worker?• Deemed workers

– Jockeys– Taxi drivers– Outworkers– Taxi drivers– Boxers, wrestlers and entertainers


Injury defined• Defined in section 4 of 1987 Act and 1998 Act

• Personal injury (injury simpliciter)

• Disease

• Aggravation, acceleration, exacerbation or deterioration of a disease

• Hearing loss

• Psychological/psychiatric injury


Injury defined• Arising out of employment or in the course of

employment

• Journey to/from work (limited application)

• Interruptions to work

• Disentitling conduct


Compensation• Economic loss

– Weekly compensation benefits– Medical or related treatment– Domestic assistance

• Non-economic loss– Permanent impairment– Pain and suffering

• Property damage

• Compensation for death of worker


DISPUTING LIABILITY

Section 74 Notice

• Notice to worker with reasons and issues that are relevant to reasons when liability in respect of claim disputed

Section 54 Notice

• Notice to worker before termination or reduction of weekly compensation if:

Section 287A Notice

• Worker may request review of decision to dispute a claim• If insurer determines that it disputes liability, must give

notice to claimant

DISPUTING LIABILITY

Insurer must be specific

Fletcher International Exports Pty Ltd v Lott

[2009] NSWWCCPD 40

• A schedule of “catch all” reasons to dispute liability is unacceptable and inconsistent with express terms of legislation (i.e. s 74)

DISPUTING LIABILITY

Insurer must be specific

Gibson v Royal Life Saving Society of Australia

[2009] NSWWCCPD 137

• The practice of denying every conceivable issue regardless of its relevance to a claim at hand does not comply with s 74 and must stop

DISPUTING LIABILITY

Psychological/psychiatric injuries

Cannon v The Healthy Snack People Pty Ltd[2009] NSWWCCPD 32

• Insurer said there was a dispute as to “whether any psychological injury that you suffer is due to reasonable action taken or proposed to be taken by [the employer] pursuant to section 11A”

• Not sufficient to quote the section and its wording – the factual basis for grounding the defence relied upon must be identified

• Need clear and precise statement of the reason liability disputed & the issues relevant to the decision to dispute

DISPUTING LIABILITY


Dept of Corrective Services v Bowditch

[2007] NSWWCCPD 244

• It is inadequate to identify s 11A as an issue in dispute

• Should have identified the grounds for relying on s11A and the “reasonable action” relied on

DISPUTING LIABILITY


Hobden v South East Illawarra Area Health Service

[2010] NSWWCCPD 13

• Broad-brush assertion that employer “acted reasonably in their actions” (re s 11A) does not comply with s 74

• Need to identify action(s) employer relies on and the basis for that reliance

RECENT LEGISLATIVE CHANGES

Workers Compensation Legislation Amendment Act 2012

Weekly compensation

• Maximum 260 weeks unless >20% WPI• Amendment to calculation of weekly amount• Internal review of insurer decision• Merits review to WorkCover• Procedural review to WIRO• No legal assistance



Lump sum compensation

• >10% WPI threshold• No claims for further impairment• No compensation for pain and suffering



Medical and related expenses

• Limited to 12 months after weekly compensation ceases, unless seriously injury worker (>30% WPI)

• Prior approval of insurer required, except treatment in first 48 hours or exempt treatment or service



Journey accidents

• Must be “real and substantial connection” between employment and accident

Heart attack and stroke

• Nature of employment must give rise to “a significantly greater risk” of worker suffering injury



Disease injuries

• Employment must be the “main contributing factor” (formerly “a substantial contributing factor”)

Legal costs

• Each party bears own costs of litigation• ILARS/legal aid scheme



Excluded classes of worker

• Police officers, paramedics, fire fighters, coal miners, emergency services volunteers and people with a dust disease claim under the Workers’ Compensation (Dust Diseases) Act 1942 are excluded from the operation of the 2012 amendments

LUMP SUM – QUANTUM ONLY

GENERAL

SMALL CLAIM – 12 WEEKS PAST &

INTERIM PAYMENT DIRECTION

Form 2

Form 2

Form 1

WORKPLACE INJURY MANAGEMENT

MEDICAL DISPUTES

COMMON LAW MEDIATIONS

COSTS ASSESSMENTS

Form 6

Form 7

Form 11C

Form 15A

DISPUTE RESOLUTION IN THE COMMISSION


CHAPTER 3, 1998 ACT

• Object:

“…to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries” (s 41)

• WIM requirements apply even if liability is disputed(s 42)


INJURY MANAGEMENT AND RTW PLANS

• If significant injury (>7 days incapacity), insurer must establish individual injury management plan concerning treatment, rehabilitation and retraining of worker if necessary

• Injury management plan established in consultation with employer, worker and nominated treating doctor

• When worker ready to return to work, employer/RTW coordinator/rehab provider must develop RTW plan in consultation with parties


OBLIGATIONS

• Worker and employer must participate and cooperate

• Worker must comply with obligations under plan and make all reasonable efforts to RTW

• Employer must provide suitable employment unless:

Not reasonably practicable

Worker voluntarily left employment

Employment terminated for other reason (s 49)

• Options of vocational re-training and work trials


SUITABLE EMPLOYMENT

• Suitable employment (s 32A, 1987 Act) means work for which worker is currently suited having regard to:– Nature of incapacity– Age, education, skills, work experience– RTW plan, occupational rehabilitation being provided

Regardless of:– Whether work is available– Availability in the labour market– Worker’s pre-injury employment– Worker’s place of residence


OBLIGATIONS

• WorkCover inspectors can issue improvement notices to employers not meeting RTW and injury management obligations

• Range of penalties apply to insurer, employer and worker for failure to comply with Chapter 3 of 1998 Act


DISPUTE RESOLUTION

• “Application to Resolve a Workplace Injury Management Dispute” (Form 6)

• Registrar may:– Conciliate to bring parties to agreement– Direct workplace assessment by injury management

consultant– Refer dispute to WorkCover Authority– Make recommendation – failure to comply = 50 penalty units

unless dispute referred to an Arbitrator

GENERAL

DUAL BENEFITS• Commission may reduce weekly payments to prevent

dual benefits in respect of same incapacity and period (s 46, 1987 Act)

DAMAGES• Worker ceases to be entitled to workers

compensation if recovers damages in respect of an injury (s 151A, 1987 Act)

• Weekly compensation deducted from damages• Burns v Gladesville Bowling & Sports Club Ltd [2000]

NSWCC 53Payment of monies pursuant to Consent Orders in the

Equal Opportunity Tribunal were held to constitute a bar to recovering further compensation

GENERAL

OUTCOME OF COMMISSION PROCEEDINGS

• What was the result in the Workers Compensation Commission?

NO CONTRACTING OUT

• Parties cannot contract out of workers compensation liability (s 234, 1998 Act)

CONCILIATION/ ARBITRATION

DIRECTIONS

REPLY

SERVICE

LODGMENT/ REGISTRATION

7 Days

14 Days

PROGRESS OF A MATTER IN THE WORKERS COMPENSATION COMMISSION FROM 1 NOVEMBER 2006

MANDATORY INTERNAL REVIEW

OPTIONAL REVIEW LUMP SUMGENERAL

SMALL CLAIM/IPD/

INJURY MGT

REGISTRAR’S DELEGATE

LIABILITY?

AMS

ARBITRATOR

ARBITRATOR

ARBITRATOR

REPLY

TELECONFERENCE

s67

DIRECTIONS?

SERVICE

REPLY

14 Days

DECISION

7 Days

14 Days

7 Days

14 Days

21 Days56 Days

YESNO

NOYES

ASAP21 Days 21 Days

MEDICAL DISPUTE

TELECONFERENCE

administrative decisions tribunal 12 june 2013

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