No 57: July 2014

Welcome to e-Bulletin No. 57 of the Workers Compensation  Commission

This bulletin outlines:

Listing of Matters

Directions for Production

Case Preparation

Serving Correspondence

Counsel Taking Multiple Briefs

Commencement of Proceedings

Sound Recording of Arbitration Hearings

Appeal Proceedings

Updated Forms

Case Law Update

New Appointments                  

New matters are currently being listed for teleconference at the Commission’s standard time frame of 35 days from lodgment of the Application to Resolve a Dispute (ARD).  Subsequent face-to-face conciliation conferences and arbitration hearings (con/arbs) are being set down in late August and early September.

As the standard timeframes for con/arbs (within
21 days from teleconference if no Directions for Production or within 56 days from teleconference if Directions for Production are issued) have largely been restored, following the spike in applications after the introduction of the Workers Compensation Legislation Amendment Act 2012, practitioners are reminded that matters must be fully ready to proceed when lodged.  Adjournments will not be granted unless exceptional circumstances are demonstrated.

Practitioners are reminded that the Registrar’s Interim Guideline - Requests to Issue Directions for Production Prior to Teleconference ceased operation on 30 April 2014.

Directions for Production may only be issued with leave of an Arbitrator (Rule 13.3, Workers Compensation Commission Rules 2011).  Leave to issue a Direction for Production may be refused if the requesting party was otherwise entitled to be provided with a copy of the document e.g. by Notice for Production (Part 12, Workers Compensation Commission Rules 2011) or as part of the claims management requirements of an insurer.

Documents produced pursuant to a Direction for Production may be allowed in proceedings if the party seeking to introduce the document was unaware of the relevant information in the document and unable to obtain possession of the document prior to issuing a Direction for Production and it is in the interests of justice to do so (Rule 10.3, Workers Compensation Commission Rules 2011).

There has been a noticeable deterioration in the standard of preparation of cases by legal representatives.

The ARD often lacks a detailed statement from the worker setting out the history and relevant facts.  Arbitrators are often required to construct the case history from medical reports and other secondary sources.

It has become common practice for legal representatives to simply attach to the ARD or Reply a copy of every document in their file without regard to the relevance of each document.  Attachments are regularly in duplicate, including multiple duplicates, in no particular order, of poor quality and/or illegible.

Late documents are often lodged up to the morning of a teleconference or con/arb, in large wads (usually clinical notes), and again of poor quality, in no particular order and even upside down.

Poor case preparation adversely impacts the progress of a case and the potential to resolve a dispute.  The large volume of poor quality and unnecessary documents makes it difficult for Arbitrators and legal representatives to navigate all the material provided in proceedings.

It is expected that all documents attached to an ARD, Reply or late documents application will be relevant, clear and sharp copies, in a logical order (e.g. witness statements grouped together, medical certificates grouped in chronological order, medical reports grouped in chronological order), with all duplicates removed and each page numbered.

The lodgment of late documents should be made not less than three days before a listing.  Lodgment of late documents up to and including the morning of the listing is unacceptable.

It is the responsibility of the legal practitioner on the record to ensure adequate case preparation and document lodgment.

Parties often fail to serve the other parties to proceedings with a copy of correspondence to the Commission. Practitioners are reminded of the requirement to do so.

The incidence of counsel taking multiple briefs for con/arbs that are listed at the same time adversely impacts the opportunity to conciliate, the time available to conduct arbitration hearings and the overall effectiveness of the dispute resolution model.

Practitioners are reminded of the Bar Rules prohibiting taking multiple briefs.  Solicitors should check when retaining counsel that they do not already have a case before the Commission.  Solicitors should also be aware if counsel is unavailable when a matter is called on, they may be required to conduct the hearing.

Arbitrators have been directed to report to the Registrar all instances of counsel briefed in multiple cases.

It is expected that parties will be ready to commence con/arbs at the allocated times, usually
10:00 am and 2:00 pm.  It is also desirable that instructing solicitors (where counsel is briefed) and clients (including insurers and employers) are in attendance.

The quality of recordings, and resulting transcripts, is adversely affected by interference from mobile phones, the shuffling of papers and participants speaking over one another.  Practitioners should ensure attention is given to minimising interference during the hearing. Participants should clearly identify themselves by name and role (e.g. Mr Black, Counsel for the Applicant).  Recording equipment should remain clear of any interference such as papers and mobile phones and, where participants speak over one another, they should each restate on the record what was said.

Practitioners are reminded of the need to comply with Practice Direction No 6: Appeal against a decision of the Commission constituted by an Arbitrator, particularly with respect to:

1. Preparing a complying chronology that refers to all relevant dates and provides page references to the evidence;
2. Specifically and succinctly identifying the grounds of appeal.  Grounds of appeal must be formulated with clarity and the manner in which the Arbitrator is said to have erred should be clearly identified.  It is unacceptable to say, for example, that the Arbitrator erred in fact, law or discretion, or that the decision is against the weight of the evidence, without elaboration;
3. Providing submissions addressing each identified ground of appeal, with appropriate paragraph and page references to the Arbitrator’s decision and the evidence;
4. Identifying how the alleged error has affected the outcome;
5. Setting out submissions in numbered paragraphs; and
6. Identifying the relief sought, that is, the order or orders it is alleged the Arbitrator should have made.

Orders by Arbitrators merely referring a matter to an Approved Medical Specialist, but making no final orders for the payment of compensation, do not finally determine the parties’ rights and are therefore interlocutory (Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
at 443-4).  In these matters, leave to appeal is required and the parties are required to make submissions on why leave should or should not be granted (Wilkie Fleming & Associates Pty Ltd v Highlands [2014] NSWWCCPD 39).

Form 2C: Application to Admit Late Documents has been redesigned to include the schedule of late documents on page 1 of the form, for easier reference by Arbitrators and the parties.

Form 7: Application for Assessment by an Approved Medical Specialist has been updated by including applications to assess whether the degree of permanent impairment is more than 30 per cent (section 32A, Workers Compensation Act 1987 – seriously injured worker) and applications to assess whether the degree of permanent impairment is more than 20 per cent (section 39 of the Workers Compensation Act 1987 – cessation of weekly payments after 5 years).

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (16 May 2014)

The High Court held that clause 5(4) of Part 19H of Schedule 6 to the Workers Compensation Act 1987 (introduced by Schedule 12[1] to the Workers Compensation Legislation Amendment Act 2012) enabled the making of clause 11 of Schedule 8 to the Workers Compensation Regulation 2010 (introduced by Schedule 1[5] to the Workers Compensation Amendment (Transitional) Regulation 2012), with the effect that the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987, introduced by Schedule 2 to the Workers Compensation Legislation Amendment Act2012, apply to claims for compensation pursuant to section 66 of the Workers Compensation Act 1987 made on and after 19 June 2012, where the worker has not made a claim specifically seeking compensation under section 66 or section 67 before 19 June 2012.  Therefore, unless a claim for lump sum compensation was made before 19 June 2012, a worker will be subject to the transitional regulation and amendments under the 2012 amending legislation.

In Mr Goudappel’s case, while he made a claim for compensation in 2010, that claim was not for lump sum compensation under section 66 and section 67 and by operation of the transitional regulation the new threshold for section 66 lump sum compensation applied.  As Mr Goudappel’s degree of permanent impairment did not reach the threshold for entitlement to lump sum compensation, his accrued right to permanent impairment compensation was extinguished.

Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (11 June 2014)

On 19 November 2010, the Commission issued a Certificate of Determination ordering Whelan Kartaway Pty Ltd to pay Mr Caulfield lump sum compensation under section 66 of the Workers Compensation Act 1987 as a result of an injury on 9 August 2005. This was in respect of eight per cent whole person impairment.

On 29 August 2012, Mr Caulfield made a second claim under section 66 for a further nine per cent whole person impairment based on a deterioration of his condition.

The first issue concerned the effect of the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18.  The question was whether a worker who specifically sought lump sum compensation for permanent impairment before 19 June 2012 is entitled to make a second claim for such compensation arising out of the same injury and, if so, the limits, if any, on the making of such a claim.

Roche DP held that the clear words of the High Court are that the amendments do not apply where the worker has made a claim for compensation under section 66 prior to
19 June 2012.  Roche DP found because Mr Caulfield specifically sought compensation under section 66 prior to 19 June 2012, he was entitled to make a second claim. This was based on the text of clause 11 of Schedule 8 to the Workers Compensation Regulation 2010.

The second issue was whether, in bringing a second claim for lump sum compensation for permanent impairment, a worker must establish a deterioration before the Registrar can refer that claim to an Approved Medical Specialist for assessment.

Roche DP applied Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 and affirmed that once injury and other liability issues are determined by the Arbitrator, the Arbitrator has no jurisdiction to determine medical disputes that come within the meaning of section 319 of the Workplace Injury Management and Workers Compensation Act 1998.

Roche DP found that a claim for further or additional lump sum compensation as a result of an alleged increased impairment since a previous assessment or award is a “medical dispute” under section 319. He held that a worker does not have to establish a prima facie case of deterioration before such a claim can be referred to an Approved Medical Specialist for assessment.

Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 (7 July 2014)

The Court of Appeal dismissed the appeal brought by Inghams Enterprises Pty Ltd (Inghams) against the decision of O’Grady DP.

The issue on appeal was whether section 43 of the Workers Compensation Act 1987, introduced by Schedule 1 to the Workers Compensation Legislation Amendment Act 2012, precluded the Commission from determining, after 1 January 2013, matters that could be subject to a work capacity decision. Although no work capacity decision had been made in Ms Sok’s matter, Inghams argued that the prohibition in section 43 extended to matters that could be the subject of work capacity decisions.

Inghams submitted that, “s 43 carves out a number of matters as the exclusive province of insurers.  The regime would be unworkable if the Commission had jurisdiction to determine those matters for as long as no work capacity decision has been made.  For example, there would be nothing to prevent an insurer from making an inconsistent work capacity decision.  The only sensible construction of s 43(3) is that it deprives the Commission of jurisdiction in relation to matters properly the subject of a work capacity decision”.

WorkCover NSW was given leave to intervene in the appeal. WorkCover made submissions that the proposition by Inghams should not be accepted, including that it required the phrase in section 43(3) “any dispute about a work capacity decision” to be read as if it referred to “any dispute about a matter of a kind which may be the subject of a work capacity decision”.  That was not the language of the section although the extra words could readily have been added had that been intended.

The Court of Appeal, per Basten JA (Barrett JA and Sackville AJA agreeing), stated at
[58]-[59] that WorkCover’s submissions were sufficient to dispose of the appeal.

I am pleased to announce the following new appointments, which were made on
1 July 2014:

Rodney Parsons, Registrar

Catherine McDonald, Arbitrator

Phillip Carr, Mediator

Gerard Egan, Mediator

Philippa O’Dea, Mediator

John Tancred, Mediator

A full list of current Arbitrators and Mediators is available on the Commission’s website www.wcc.nsw.gov.au.