Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998

This Guideline provides guidance to parties and their legal representatives, concerning requests for reconsideration under sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998

Policy

INTRODUCTION

This guideline must be considered in the context of the objectives of the Commission, in particular the duty to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the workers compensation legislation.

SECTION 329 (1A)

Section 329 of the Workplace Injury Management and Workers Compensation Act 1998 ('the 1998 Act') provides as follows:

329 Referral of matter for further medical assessment or reconsideration

(1) A matter referred for assessment under this Part may be referred again on one or more
further occasions for assessment in accordance with this Part, but only by:

(a) The Registrar as an alternative to an appeal against the assessment as provided by section 327, or

(b) A court or the Commission.

(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.

(2) A certificate as to a matter referred again for further assessment or reconsideration prevails
over any previous certificate as to the matter to the extent of any inconsistency.

SCOPE OF SECTION 329 (1A)

Reconsiderations under section 329(1A) are confined to medical assessments under Part 7 of the 1998 Act. This power is in addition to the Registrar's power to refer the matter back to the approved medical specialist on one or more occasions as an alternative to an appeal against a Medical Assessment Certificate.

SECTION 350 (3)

Section 350 of the 1998 Act provides as follows: 350

Decisions of Commission

(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

(2) A decision of or proceeding before the Commission is not:

(a) to be vitiated because any informality or want of form, or

(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3) The Commission may reconsider any matter that has been dealt with by the Commission
and rescind, alter or amend any decision previously made or given by the Commission.

SCOPE OF SECTION 350 (3)

The term 'matter' in section 350(3) is not defined. Section 350(3) authorises the Commission, to rescind, alter or amend any decision it has previously made. The section applies to decisions by a Presidential Member, an Arbitrator, or the Registrar exercising the functions of an Arbitrator.

SECTION 378

Section 378 of the Workplace Injury Management and Workers Compensation Act 1998 ('the 1998 Act') provides as follows:

378 Reconsideration of decisions,

(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.

(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.

(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).

(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.

(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.

SCOPE OF SECTION 378

The term 'matter' in section 378(1) is not defined. It includes determinations made by the Registrar or an Appeal Panel. Section 378 authorises the Registrar or an Appeal Panel to rescind, alter or amend any decision they have previously made. The reconsideration provision in section 378 does not apply to the decision of an AMS. However, the Registrar has the power under section 329(1A) to refer an assessment back to an AMS for reconsideration on one or more occasions.

APPLICATIONS FOR RECONSIDERATION

There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378. Parties may make application by way of letter that includes the following information:

The matter that is the subject of the application for reconsideration;
The basis upon which a reconsideration is sought;
Where relevant, the special circumstances which justify any delay in the making of the application for reconsideration;
Where relevant, submissions addressing why the decision should be the subject of reconsideration rather than appeal;
The date of service of the application on any other party to the proceedings.

The application for reconsideration should be made as soon as practicable after the party making the application becomes aware of the basis for seeking reconsideration. It should be served on the other parties prior to lodgment with the Commission, together with a notification to the parties served that they have 21 days in which to reply.

REPLY TO A RECONSIDERATION APPLICATION

The other parties in the proceedings may indicate their support or opposition to the application for reconsideration by filing and serving a reply within 21 days of being served with the application.

Where a party opposes the reconsideration the reply should include the following information:

Submissions in response to the matters raised by the party seeking the reconsideration;
Where relevant, the reasons why any delay in the making of the application does not justify allowing the reconsideration to proceed;
Where relevant, why the applicant should be seeking an appeal rather than a reconsideration; and
The date of service of the letter on the other parties to the dispute.

MATTERS FOR CONSIDERATION

The power contained in sections 329(1A), 350(3) and 378 is a discretionary one. It will be exercised in order to achieve the Commission's statutory objective of providing a fair dispute resolution system (section 367(1)(a)) and in a way that is consistent with accepted authority. Regard will be had to existing common law principles applicable to reconsideration applications:

(1) The sections confer a wide discretion to reconsider previous decisions;

(2) Whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration;

(3) One of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely;

(4) Reconsideration may be allowed if new evidence, that could not have reasonably been obtained prior to the decision, is later obtained and that new evidence, if it had been put before the decision maker in the first instance, would have been likely to lead to a different result;

(5) Depending on the facts of the particular case, a party may be prevented from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;

(6) A mistake or oversight by a legal representative or agent will not give rise to a ground for reconsideration; and

(7) The Commission has a duty to do justice between the parties according to the substantial merits of the case.

The Commission will advise the parties in writing of the outcome of an application for reconsideration, including brief reasons why the application will proceed or has been declined.

February 2010

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