WCC e-Bulletin No 52 - December 2012

Lodgement of new applications

On 21 December 2012 the Government made the Workers Compensation Amendment (Further Transitional) Regulation 2012. The Regulation, amongst other things, extends the deadline to lodge matters in which costs may be awarded by the Commission under the transitional arrangements.  Where a matter involves a claim for compensation made before 1 October 2012, it will be finalised in accordance with the previous cost provisions providing it is lodged in the Commission before 31 March 2013. A copy is available at http://www.legislation.nsw.gov.au/

Christmas/New Year period Medical Assessment Certificates and Certificates of Determination

In recognition of the appeal time limits (28 days) for both Medical Assessment Certificates (MACs) and Certificates of Determination (CODs) the Commission will again this year not be issuing either MACs or CODs between 25 December 2012 and 4 January 2013. Both processes will recommence on 7 January 2013.  Please note that normal appeal time limits will continue to apply.  The Commission will continue to sign and seal consent order received from the parties during the above period.

Update on Increase in Commission lodgements and resulting delays

Since the announcement of amendments to the Workers Compensation legislation in late June 2012, the Commission has experienced more than a doubling in the volume of lodgements.  During December 2012, lodgements have been even higher, resulting in a substantial backlog and a large numbers of on hand matters.   Consequently, there will be lengthy delays in the allocation of matters to teleconferences, with dates now being listed in July 2013.

To assist in alleviating some of the delays, the Commission is currently liaising with WorkCover and the User Group to develop a model of early settlement conferences in the first half of 2013.  The Commission has also issued an Interim Practice Direction to speed up the issuing of Directions for Production where there is consent by the parties (see E-Bulletin 51).

We would like to thank you for your patience while we manage this increased workload and assure you we are doing everything to finalise matters as expeditiously as possible.

Di Matteo Question of Law Referral

A Question of Law (QoL) referral in the matter of Di Matteo v RDM Ceramics Pty Ltd has recently been referred to the President.

The questions to be determined are:

1. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment where the injury occurred before 1 January 2002?
2. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 disallow a worker who has made a claim for permanent impairment compensation prior to 19 June 2012, making a further claim in respect of the same injury for permanent impairment compensation on or after 19 June 2012?

Finalisation of other matters on foot dealing with these questions will be deferred pending outcome of the QoL referral.  Parties are referred to Clause 19 of the Workers Compensation Amendment (Further Transitional) Regulation 2012 that may be relevant to the QoL referral.

NCAT Project

On 26 October 2012, the Attorney General announced that the Government would be establishing the NSW Civil and Administrative Tribunal (NCAT).

The new Tribunal will consolidate 23 of the State’s existing Tribunals, including the Consumer, Trader and Tenancy Tribunal (CTTT), the Administrative Decisions Tribunal (ADT) and the Guardianship Tribunal.  The NCAT is due to commence operation on 1 January 2014.

The Workers Compensation Commission has not been identified as one of the Tribunals to be consolidated into NCAT.  However our Registrar, Sian Leathem, has been approached to head the project team with responsibility for the planning and establishment of the new Tribunal. She will be seconded to the Department of Attorney General and Justice to undertake this role between 14 January and 12 July 2013.

During the Registrar’s absence Rod Parsons will acting Registrar from 14 January to 15 April 2013. Annette Farrell will be acting Registrar from 16 April 1013 to 12 July 2013.

Christmas Timetable reminder

As is our usual practice, we are planning to have a brief shut-down over the Christmas/New Year period (Thursday, 20 December 2012 to Tuesday, 8 January 2013 inclusive) where no teleconferences will be listed.   The revised timetable relating to applications lodged during this period is as follows:

• No teleconferences scheduled by the Commission from 20/12/12 to 8/1/13
• Conciliation/arbitration hearings and mediations will be held during this period on request only
• Extended service dates for matters registered between 17/12/12 and 31/12/12
• Extended date for filing of reply matters registered between 4/12/12 and 31/12/12
• The Registry will remain open on all business days during this period, albeit with reduced staff.

Section 352 Appeals Against Decisions of the Commission Constituted by an Arbitrator

Practitioners are reminded that appeals under s 352 of the 1998 Act must comply with Practice Direction No 6. The appeal application must, among other things, briefly, but specifically, state the grounds of appeal and be supported by submissions in support of each ground with page and line references to the evidence, transcript and decision. It is not acceptable to merely allege that the Arbitrator erred in law, fact or discretion, or to say that the decision is against the evidence or the weight of the evidence. Nor is it acceptable to merely recount a narrative of the findings interspersed with general complaints of error.

From 1 January 2013, appeals that do not comply with Practice Direction No 6 will be the subject of a direction that further submissions be filed and served, and the appeal will not proceed until the party concerned has complied with that direction.

Judge Greg Keating, President