No 69: July 2017

Welcome to e-Bulletin No. 69 of the Workers Compensation Commission.

This bulletin outlines:

Electronic return of sealed forms

Level 21 refurbishment

Commencement time of proceedings

Medical or related treatment disputes

Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417

User Group meetings

Electronic return of sealed forms

Since June 2016, the Commission has been issuing decisions, medical assessment certificates, orders and directions electronically, to the email address of the legal representative stated on the Application or Reply.

Over the next three months, the Commission will be phasing in the electronic return of sealed copies of approved forms, where the forms and attachments are lodged via email.  Forms will be returned to the email address of the legal representative, as stated on the form.

Where a sealed form is returned electronically, no hard copies will be returned by DX or post.

Practitioners should ensure that email inboxes are appropriately monitored as the Commission will not resend sealed forms if an “out of office” or “on leave” reply email message is received.

The refurbishment of Level 21 has now been completed and was officially opened on
5 June 2017 by the Hon Victor Dominello MP, Minister for Finance, Services and Property.  The Commission appreciates the co-operation of all parties and legal representatives who attended proceedings during the construction period.

Level 21 is a secure floor, with access to the public from 9.00am.  Meeting rooms are available from that time for legal representatives to meet with their clients, before proceedings commence at 10.00am.

Parties are reminded that the time listed in a notice for conciliation/arbitration hearing is the time that the proceedings will commence.  The Commission expects that all parties will be ready to commence at the designated starting time, irrespective of whether the proceedings are listed in the Sydney CBD or regional/rural NSW.

Legal representatives holding client conferences should ensure they are concluded before the designated commencement time of Commission proceedings.

Disputes regarding medical expenses, both past and future, should be itemised at Part 5 of an Application to Resolve a Dispute (Form 2).  Each medical or related treatment claimed should specify the type, frequency, duration and cost of the treatment.  This enables both the respondent and Arbitrator to properly quantify and consider each claim.

Applications lodged without the relevant particulars will be rejected by the Registry.

The decision in the above matter makes it clear that the Commission has jurisdiction to determine liability in work injury damages claims.  Where liability is in dispute, the matter will be referred to an Arbitrator for determination before referral to an Approved Medical Specialist (AMS) for assessment of permanent impairment.

Background

Mr Benedek lodged an Application for Assessment by an Approved Medical Specialist
(Form 7) in respect of a threshold dispute for work injury damages.  The body parts to be referred for assessment included the thoracic spine.  The parties had previously entered into a complying agreement for 14% whole person impairment, which excluded the thoracic spine.  Favetti Bricklaying disputed liability for the thoracic spine.  In its Response, it pressed for the matter to be referred to an Arbitrator to determine whether it was liable in respect of the thoracic spine.  Favetti Bricklaying asserted that the Registrar had no power to refer the matter to an AMS until the issue in relation to the thoracic spine was determined.  The Registrar’s delegate declined to refer the matter to an Arbitrator for determination as the delegate was of the opinion that the Commission did not have jurisdiction to determine the liability issue in a claim for work injury damages.  Favetti Bricklaying sought judicial review of the delegate’s decision.

Judicial review proceedings

Justice Bellew considered the question of the competing positions of the parties as a matter of statutory construction.  His Honour was satisfied that there was a “medical dispute”, as defined, however he observed that the Registrar’s discretionary power to refer a medical dispute to an AMS was limited by section 321(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), which prohibits the power to refer such a dispute from being exercised in respect of a medical dispute “concerning permanent impairment” where liability is in issue and has not been determined by the Commission.

His Honour held that the word “concerning” within the phrase “concerning permanent impairment” has a wide meaning and connoted a broad class of dispute (at [77]). In that context, the section 74 notice issued by the employer asserted that the worker was not entitled to any compensation over and above what he had already received.  This put in issue liability to pay compensation and there had been no subsequent determination of liability by the Commission.

His Honour said the plain text of section 321(4) did not allow the Registrar’s delegate to refer the matter to an AMS (at [80]).  His Honour said that section 321(4)(a) presupposes that the Commission has the jurisdiction to resolve the issue of liability prior to the matter being referred to an AMS (at [89]).

Bellew J was of the view that the Commission’s broad power in section 105(2) of the 1998 Act to “examine, hear and determine” matters for the purposes of, and in connection with, the operation of Part 6 of Chapter 7 of the 1998 Act, included determining liability in a threshold dispute prior to the matter being referred to an AMS (at [89]-[90]).  Ultimately, his Honour accepted the proposition that the referral was beyond power and inconsistent with the provisions of section 151H(4) of the Workers Compensation Act 1987 (at [92]).

The decision of the delegate was quashed and the Registrar was restrained from acting upon or taking any further step in relation to an assessment of whole person impairment until liability in respect of injury to the thoracic spine had been determined by the Commission.

The Commission meets regularly with representatives of The Law Society of NSW, NSW Bar Association and the State Insurance Regulatory Authority.  The next meeting is scheduled for 4 October 2017.

Practitioners are welcome to raise issues directly with the Registrar.  However, the option also exists to raise issues with the legal profession representatives for tabling and discussion at User Group meetings.

The legal profession representatives are Elizabeth Wood, Shane Butcher, Steve Harris, Kristi McCusker and Andrew Mulcahy.