WCC e-Bulletin No 56: November 2013

Welcome to E-bulletin No. 56 of the Workers Compensation Commission.

This bulletin outlines:

• Question   of Law – Sukkar v Adonis Electrics Pty   Ltd
• Disputes   involving claims for section 67 compensation
• Arbitral   Appeals - Fresh or Additional Evidence
• Unprepared   Matters
• Changes   to Forms
• Holiday   Period – December/January 2013/2104

Question of Law – Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59

The decision in the Question of Law application referred in Sukkar v Adonis Electrics Pty Ltd was issued on 8 November 2013.

The answers to the questions of law referred for determination are:

1. Do the amendments to Div 4   Pt 3 of the Workers Compensation Act 1987(the 1987 Act) introduced by Sch 2 of   the Workers Compensation Legislation   Amendment Act 2012 apply to claims for permanent impairment compensation   for hearing loss (to which s 17 of the 1987 Act has application) made on or   after 19 June 2012 when a worker has made a previous claim for permanent   impairment compensation for hearing loss prior to 19 June 2012?

   Answer: Yes

2. If yes, whether in claims   for compensation pursuant to s 66 of the 1987 Act, including hearing loss   claims (to which s 17 of the 1987 Act has application), involving the same   pathology of injury arising from multiple injurious events of injury, the   multiple injuries can be aggregated for the purpose of determining whether or   not the worker’s claim exceeds the s 66(1) threshold?

Answer:  No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.

Disputes Regarding Section 67 pain and suffering compensation

The Commission has amended its practice in relation to disputes regarding section 67 pain and suffering compensation post the issue of a Medical Assessment Certificate.

A Certificate of Determination in relation to the applicant’s section 66 permanent impairment compensation will now be issued in accordance with the Medical Assessment Certificate (MAC) at the expiration of 28 days from issue of the MAC.

Parties are encouraged to engage in settlement discussions to resolve the applicant’s section 67 entitlements, if any, to eliminate the need to make a further appearance before the Commission.  Where the parties reach agreement, parties may email the Commission, at [email protected] the agreed value for the section 67 compensation. The Commission will then issue consent orders. Alternatively, parties may complete the Consent Order template to reflect the section 67 agreement forward to the Commission for determination and issue.  The template is available on the Commission’s website at www.wcc.nsw.gov.au.

Where the parties are unable to resolve the applicant’s section 67 entitlements, the proceedings may be restored after 28 days from issue of the Certificate of Determination.

Arbitral Appeals – Fresh or Additional Evidence – Commission’s approach affirmed on appeal

In CHEP Australia Ltd v Strickland [2013] NSWVCA 351, Barrett JA (Macfarlan JA agreeing) confirmed theCommission’s approach to the admission of new evidence inCHEP Australia Ltd v Strickland[2012] NSWWCCPD 27. The Court held that s 352(6) raises two, alternative, threshold questions: the first is the fresh evidence question and the second is if the failure to admit the new evidence would cause a substantial injustice.

The second alternative will not be satisfied unless the new evidence would have produced a different result. The Presidential member’s task is to decide whether the absence of the new evidence “would cause” substantial injustice in the case. If the result would be the same whether the new evidence is admitted or not, the ends of justice cannot be said to have been defeated by the exclusion of that evidence.

This decision is consistent with the Commission’s long-standing practice when dealing with new evidence applications on appeal. Practitioners are reminded that arbitrations are not a trial run where the parties can await the outcome and then attempt to tender on appeal the evidence that should have been tendered at the arbitration.

Unprepared Matters

Over recent months, the Commission has noted an increased number of matters that are not ready to proceed at the teleconference.  Where an application has been commenced without adequate supporting evidence, the current time delays to teleconference provide ample opportunity for an applicant to obtain such evidence.  Parties are advised that a matter not adequately prepared at teleconference, where no attempts have been made to prepare since filing, may be dismissed for want of due despatch (Rule 15.8, Workers Compensation Commission Rules 2011).

Parties, in particular respondents, are also reminded that the Registrar’s Interim Guideline in relation to issuing direction for production prior to teleconference provides an opportunity to ensure all parties are in a position to explore settlement at the teleconference.

Changes to Forms

The Commission has updated the following forms:

Form 1 - Application for Expedited Assessment

• Removed   the requirement to provide a CAS number and Advice if there is a failure to   determine by the Insurer as WorkCover will no longer be providing a reference   number

Form 2 - Application to Resolve a Dispute

• Removed   the requirement to provide a CAS number and Advice if there is a failure to   determine by the Insurer as WorkCover will no longer be providing a reference   number

Form 7 - Application for Assessment by Approved Medical Specialist

• Amended   by deleting:
  “Dispute as to employee’s condition and fitness for employment (section 96, Industrial   Relation Act 1996)”
  Inserted instead:
  “Dispute as to worker’s condition and fitness for employment (section 245, Workers   Compensation Act 1987)”

Form 11B - Application to Cure a Defective Pre-filing Statement

• The   options for the application to be Filed by the Defendant or the Defendants   Representative  have been removed

Form 15 - Application for Assessment of Costs - Schedule 6 before 1 November 2006

• Amendment   to wording of the Notice to Parties relating to service of costs applications

Form 15A - Application for Assessment of Costs - Schedule 6 on or after 1 November 2006

• Amendment   to wording of the Notice to Parties relating to service of costs applications

Form 15B - Application for Assessment of Costs -Schedule 7

• Amendment   to wording of the Notice to Parties relating to service of costs applications

Holiday Period December 2013 – January 2014

Due to the December-January holiday period 2013/14, the Commission will issue revised proceedings timetables for dispute applications (Forms 2 and 2D) registered in the period 4 December 2013 to 31 December 2013.

Key points in the revised timetables include:

• Extended service dates for   matters registered between 16 December 2013 and 31 December 2013.
• Extended date for filing   of reply for matters registered between 4 December 2013 and 31 December 2013.

The Commission will not schedule teleconference from 23 December 2013 to 7 January 2014 inclusive. Conciliation/arbitration hearings and mediation hearings will be held during this period where requested by parties.

The Registry will remain open on all business days during the period.