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ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013

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Presentation on theme: "ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013"— Presentation transcript:

1 ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013
WORKERS COMPENSATION SCHEME, RECENT CHANGES AND DISPUTE RESOLUTION Rodney Parsons Deputy Registrar Workers Compensation Commission Phone:

2 OVERVIEW Entitlement to workers compensation Disputing liability
Recent legislative changes Dispute resolution (focus workplace injury management) General provisions

3 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

4 WORKERS COMPENSATION IN NSW
Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Regulation 2010 WorkCover Guidelines

5 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

6 WORKER, INJURY AND COMPENSATION
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

7 WORKER, INJURY AND COMPENSATION
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

8 WORKER, INJURY AND COMPENSATION
Who is a worker? Deemed workers Jockeys Taxi drivers Outworkers Boxers, wrestlers and entertainers

9 WORKER, INJURY AND COMPENSATION
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

10 WORKER, INJURY AND COMPENSATION
Injury defined Arising out of employment or in the course of employment Journey to/from work (limited application) Interruptions to work Disentitling conduct

11 WORKER, INJURY AND 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

12 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

13 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)

14 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

15 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

16 DISPUTING LIABILITY Psychological/psychiatric injuries
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

17 DISPUTING LIABILITY Psychological/psychiatric injuries
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

18 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

19 RECENT LEGISLATIVE CHANGES
Workers Compensation Legislation Amendment Act 2012 Lump sum compensation >10% WPI threshold No claims for further impairment No compensation for pain and suffering

20 RECENT LEGISLATIVE CHANGES
Workers Compensation Legislation Amendment Act 2012 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

21 RECENT LEGISLATIVE CHANGES
Workers Compensation Legislation Amendment Act 2012 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

22 RECENT LEGISLATIVE CHANGES
Workers Compensation Legislation Amendment Act 2012 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

23 RECENT LEGISLATIVE CHANGES
Workers Compensation Legislation Amendment Act 2012 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

24 DISPUTE RESOLUTION IN THE COMMISSION
Form 2 GENERAL Form 2 LUMP SUM – QUANTUM ONLY SMALL CLAIM – 12 WEEKS PAST & INTERIM PAYMENT DIRECTION Form 1 WORKPLACE INJURY MANAGEMENT Form 6 MEDICAL DISPUTES Form 7 COMMON LAW MEDIATIONS Form 11C COSTS ASSESSMENTS Form 15A

25 WORKPLACE INJURY MANAGEMENT
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)

26 WORKPLACE INJURY MANAGEMENT
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

27 WORKPLACE INJURY MANAGEMENT
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

28 WORKPLACE INJURY MANAGEMENT
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

29 WORKPLACE INJURY MANAGEMENT
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

30 WORKPLACE INJURY MANAGEMENT
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

31 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 53 Payment of monies pursuant to Consent Orders in the Equal Opportunity Tribunal were held to constitute a bar to recovering further compensation

32 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)

33 LODGMENT/ REGISTRATION
PROGRESS OF A MATTER IN THE WORKERS COMPENSATION COMMISSION FROM 1 NOVEMBER 2006 MANDATORY INTERNAL REVIEW LODGMENT/ REGISTRATION OPTIONAL REVIEW GENERAL LUMP SUM 7 Days SMALL CLAIM/ IPD/ INJURY MGT ARBITRATOR SERVICE 7 Days 14 Days SERVICE REPLY 7 Days 14 Days REGISTRAR’S DELEGATE REPLY NO LIABILITY ? YES 14 Days REPLY TELE CONFERENCE 14 Days ARBITRATOR MEDICAL DISPUTE YES DIRECTIONS ? NO TELE CONFERENCE DIRECTIONS AMS s67 21 Days 56 Days ARBITRATOR CONCILIATION/ ARBITRATION 21 Days ASAP 21 Days DECISION


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