WCC e-Bulletin No. 60 - July 2015

Arbitrator appointments

I am pleased to announce the following Arbitrator appointments, which were made on 26 June 2015 for terms of three years:

Senior Arbitrators

Marshal Douglas              Catherine McDonald         Michael Snell

Full-time Arbitrators

Brett Batchelor                 Glenn Capel                     Josephine Snell

Paul Sweeney                  Timothy Wardell

Sessional Arbitrators

Linda Ashford A/J             Elizabeth Beilby                Ross Bell

Anne Britton                     Garth Brown                     William Dalley

Grahame Edwards            Gerard Egan                     Annette Farrell

Deborah Moore                Jane Peacock                   Richard Perrignon

Carolyn Rimmer               John Wynyard

I congratulate all appointees and welcome new Arbitrators Anne Britton and  Tim Wardell.

I acknowledge former Arbitrators Robert Caddies, Robert Foggo, John Harris,  John Hertzberg, Michael McGrowdie, Bruce McManamey, Peter Molony,  Annemarie Nicholl and Jeffrey Phillips SC who were valued members of the Commission and made significant contributions during their respective appointments.

Procedural change for disputes under section 60(5)

The procedure with respect to disputes under section 60(5) of the Workers Compensation Act 1987 has changed.  All disputes concerning compensation for future medical or related treatment will be referred initially to an AMS for opinion as to whether the proposed treatment is reasonably necessary as a result of injury, regardless of whether liability is disputed and/or other compensation benefits are claimed.

Following issue of a Medical Assessment Certificate by an AMS, any outstanding liability issues will be listed for teleconference before an Arbitrator.

Updated Forms

Form 1 Application for Expedited Assessment has been updated to include the following change:

• New schedule of earnings at Part 6.3.

'Form 2 Application to Resolve a Dispute' has been updated to include the following changes:

• New schedule of earnings at Part 5.2,
• Separation of past and future medical expenses at Part 5.3, and
• Requirement of a Statement of Worker at Part 6.2 (where application filed by a worker).

'Form 2A Reply to Application to Resolve a Dispute' has been updated to include a new schedule of earnings at Part 4 to mirror the changes to the schedule of earnings made to Form 2.

A transitional period is in place until the end of August during which the old forms will be accepted.

Regional listings

The availability of regional venues for con/arbs is intended to provide access to the Commission for workers who reside outside of Sydney, in rural and remote locations.  Listing con/arbs in the Commission’s 19 regional venues remains a priority.

If the parties prefer a Sydney listing in preference to a regional listing, and it is more suitable for the worker, the parties may apply at the teleconference for a matter to be listed for con/arb in Sydney.

Also, where a matter is required to be allocated a con/arb date at a regional venue and the Arbitrator conciliating at the teleconference will not be attending the regional venue, the Arbitrator has been requested to ascertain a suitable date for the parties prior to ending the teleconference.

Correct naming of Government employees

Parties must ensure that where a government department is the employer, the respondent is correctly named.

If the employer is a government department that is listed in Part 1 of Schedule 1 of the Government Sector Employment Act 2013, section 26(1) of that Act provides that the Secretary of the relevant government department exercises on behalf of the Government of New South Wales the employer functions of the Government.

The government departments listed in Schedule 1 are:

• Department of Education,
• Department of Family and Community Services,
• Department of Finance, Services and Innovation,
• Ministry of Health,
• Department of Industry, Skills and Regional Development,
• Department of Justice,
• Department of Planning and Environment,
• Department of Premier and Cabinet,
• Department of Transport, and
• The Treasury.

Part 2 of Schedule 1 lists the government agencies related to the above departments.

Accordingly, in proceedings against the listed government departments, the correct legal identity of the respondent is “Secretary, [Name of Department]” (see Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 at [11]).

In proceedings that involve:

• Ambulance Service of New South Wales,
• New South Wales Hospitals, and
• Local Area Health Services,

the appropriate legal identity is “State of New South Wales” (see Crown Proceedings Act 1988 and State of New South Wales v Bishop [2014] NSWCA 354 at [26]–[28]).

Documents in support of a section 74 notice

Practitioners are reminded that it is insufficient to attach a section 74 notice to an Application to Resolve a Dispute and, in the supporting documents list, simply state “section 74 notice plus attachments” followed by pages of attachments which are not referenced.

All documents that are attached to a section 74 notice must be referenced individually in the supporting documents list on the Application to Resolve a Dispute.

Expedited assessments

An Application for Expedited Assessment (Form 1) is available for referral of disputes for interim payment directions of weekly compensation benefits of up to
12 weeks and medical expenses of up to $8,620.90 (such amount adjusted from time to time under Division 6 of Part 3 of the Workers Compensation Act 1987).

Section 297 of the Workplace Injury Management and Workers Compensation Act 1998 presumes that an interim payment direction is warranted unless certain circumstances exist.  Matters are referred to an Arbitrator or a delegate of the Registrar for teleconference 14 days from lodgment of the dispute.

A guide to completing Form 1 is available on the Commission’s website.  Practice Direction No 10 must be complied with, including the requirement to serve the
Form 1 application on the other parties at the same time the application is filed with the Commission (that is, a sealed copy is not required to be served).

Road shows

In November, the Commission will hold a series of road shows in Sydney and regional areas.  The road shows provide an opportunity for legal practitioners to hear from Commission representatives on a range of topics including practice, procedure and case law.  The regional presentations in particular provide an opportunity for informal interaction between the profession and the Commission and for feedback on the Commission’s operations.

The proposed dates and areas for the road shows are:

4 November 2015               Penrith

9 November 2015               Wollongong

10 November 2015             Tamworth

11 November 2015             Coffs Harbour

13 November 2015             Tweed Heads

17 November 2015             Wagga Wagga

18 November 2015             Orange

20 November 2015             Newcastle

23 November 2015             Sydney

Further information will be provided shortly.  There will be no charge to attend.

Appeal proceedings

The profession is reminded that section 352 appeals to Presidential members must comply fully with Practice Direction No 6. The Practice Direction requires that, among other things, the appeal application states briefly, but specifically, the grounds relied on in support of the appeal.  It is not sufficient to merely allege that the Arbitrator erred in law, fact or discretion.  The grounds must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found.

Submissions in support of the appeal must be divided into paragraphs and numbered consecutively with appropriate subheadings. They must deal clearly and succinctly with each ground of appeal, under appropriate subheadings, and include relevant page references to the evidence and transcript.  General submissions, which may be appropriate in a rehearing, but do not address any identified ground of appeal, do not comply with the Practice Direction and are unacceptable.

Full and correct names, citations and page or paragraph references to any judicial authorities must also be provided. References to the legislation must include the section or subsection and the full name of the Act or Regulation.  The parties are to rely on and refer to the Commission’s official transcript of the arbitration proceedings.

Non-compliance with Practice Direction No 6 may result in a direction that further submissions are to be filed or that the matter is to be listed for oral hearing, with the consequence that the resolution of the matter will be delayed and further costs will be incurred which are not be recoverable.

Judge Greg Keating

President