The practice of the conciliation/arbitration process in the Workers Compensation Commission

The Workers Compensation Commission ('the Commission') has developed a dispute resolution model to implement the objectives of the Workplace Injury Management and Workers Compensation Act 1998 ('the 1998 Act'). Pursuant to section 367 (1) of the 1998 Act (which states the Objectives of the Commission), Rules have been made, Practice Directions have been set down, and relevant policy documents have been issued by the Commission. A list of these source documents is attached to this Guideline. Of particular relevance are the Access & Equity Service Charter and the Registrar's Guideline for Standards of Conduct during Proceedings.

This document is designed to further enhance the practical operation of the dispute resolution process developed to date. It is necessary to ensure that the model is used appropriately in determining all applications made to the Commission (which are referred to an Arbitrator) so as to realise its objectives. It is based on the following principles:

• The Commission is part of a broader statutory scheme for dealing with workers compensation issues and claims in a way that is just, timely, fair and affordable (sections 3 & 367 of the 1998 Act).
• All of the information to be used in the dispute resolution process is to be provided and exchanged early in the process (section 290 of the 1998 Act & Part 10 of the Workers Compensation Commission Rules 2010). Key information will already be in existence, having been used to support prior resolution attempts between the parties (Parts 2 & 3 of Chapter 7 of the 1998 Act).
• Agreement between the parties is to be encouraged and facilitated at each stage of the process (section 355 of the 1998 Act, Rule 15.3(d)).
• The Commission will take all practicable measures to ensure that parties understand the nature of the application, the legal implications of any assertions made in the proceedings, the procedure of the Commission and any decision or ruling made (Rule

15.3(a) & (b)

• The intent of the legislature is to separate disputes as to liability for permanent impairment (and/or proposed medical treatment or service) from disputes as to the degree of permanent impairment (and/or whether a proposed medical treatment or service is reasonably necessary).
• The role of the Arbitrator in permanent impairment matters is restricted to resolving/determining any dispute as to the liability in respect of permanent impairment claims.
• Even though documents that relate to a dispute about permanent impairment may be among the material referred to the Arbitrator, the Arbitrator must address only the issues properly within the scope of his or her function.
• Having resolved liability for permanent impairment, the Arbitrator's function is not to participate in, or encourage any negotiations between the parties in relation to their possible settlement of their dispute regarding the degree of impairment. Should parties reach such an agreement on impairment, and so advise the Arbitrator, the appropriate step is for the Arbitrator to record that the dispute in relation to the degree of permanent impairment has been resolved between the parties application and that the application has been discontinued.
• Even when the degree of permanent impairment remains in issue, Arbitrators are encouraged to determine claims for weekly compensation and medical expenses at the earliest opportunity. It is however recognised that there will be cases when it will be necessary for the degree of permanent impairment to be assessed prior to a determination of weekly compensation benefits and medical expenses. In addition, the Arbitrators also have available to them the option of requesting an Approved Medical Specialist to provide a non binding, general medical assessment as to fitness for work.
• Arbitrators are to play a pro-active role in assisting the parties to reach a resolution of the dispute. If a determination of the dispute is required, the proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter requires (section 354 of the 1998 Act).
• Parties are entitled to procedural fairness consistent within the non-adversarial character of the process and the objectives of the Commission (sections 367(1) (a) & (2) of the 1998 Act, Rules 15.2 & 15.3(c)). Timeliness and consistency of procedure are strong elements of fairness in this method of dispute resolution.
• Evidence used as a basis for any final arbitral decision-making will usually be in documentary form. There will be limited opportunity for oral evidence to be given (Rules 14.2 & 14.3).
• The Act requires that the same Arbitrator who is to determine a dispute will first use his or her best endeavours to bring the parties to a settlement that is acceptable to the parties (section 355 of the 1998 Act).

What follows is therefore, a detailed description of the mandatory steps to be taken in the determination of applications. It requires that Arbitrators comply with the practice set down in this document. This public statement of the Commission's mandatory dispute resolution process also assists the parties and their representatives. All parties, and their representatives, will know, in advance, what will happen in the course of dealing with any matter. This consistency of approach enhances the objectives of the 1998 Act and gives effect to the underlying policy goals of the system.

OVERVIEW OF THE PROCESS

PREPARATION

After an Application to Resolve a Dispute is received, there is, usually a lodgment of a Reply by the Respondent, and in some cases a Response by the Applicant.

Disputes including claims:

• in respect of payment of weekly benefits and/or medical expenses;
• arising from the death of a worker;
• raising any factual or legal issues arising from any claim for permanent impairment; and
• for pain and suffering following an assessment by an Approved Medical Specialist, will generally be referred to an Arbitrator.

Where the only issue in dispute is the degree of the permanent impairment or a dispute concerning whether any proposed treatment or service is reasonably necessary, the Registrar will refer these directly to an Approved Medical Specialist.

RESOLUTION

At the telephone conference

During the telephone conference, the parties explore settlement with the assistance of the Arbitrator, and if possible reach agreement. If agreement is not reached, arrangements will be made for determination based on the documents or the matter will be scheduled for a conciliation/arbitration.

By Determination on the Papers

If the Arbitrator is satisfied that the matter can be determined without a face-to-face hearing, he/she will determine the matter on the basis of the documents lodged.

By Conciliation

During the face-to-face conciliation phase of the conciliation conference/arbitration hearing, the Arbitrator will assist the parties to reach an agreed settlement.

By Arbitration

If the matter is not settled as a result of the conciliation conference, the Arbitrator will proceed on the same day to determine the dispute by arbitration.

FINALISATION

During this phase the Arbitrator, the Parties and the Registry will take the action necessary to finalise the proceedings. Most disputes are finalised by way of a Certificate of Determination.

PROCESS FOR RESOLUTION

THE TELEPHONE CONFERENCE - an opportunity for resolution

Purpose of the conference

The purpose of the telephone conference is:

• to explore resolution of the dispute (Rule 15.3 (d));
• to ensure parties understand the nature of the proceedings and to explain any aspect of the procedure for resolving the dispute (Rule 15.3 (a) & (b));
• if all issues ARE settled, to determine how the matter is to be finalised, and
• if all or some issues ARE NOT settled, to clearly identify the issues remaining in dispute and to ensure the matter is ready for the next phase.

Timing

The conference will take place approximately 28 days after the date of registration of an application.

Parties will be advised of the date of the teleconference at the time of registration of the application. The time will be confirmed by subsequent written notice to the parties. This conference will usually be scheduled for up to 2 hours to allow time to effect resolution of the matter.

Participation

Parties and their legal representatives are required to be in attendance on the telephone and to participate throughout this conference. Participation may be by use of a speakerphone or separate telephone line. If parties are not in attendance the conference may proceed and the application may still be finalised at this stage.

Agents of the employer and/or scheme agent for the nominal insurer/insurer are expected to participate in proceedings. They should generally attend at the same physical location as their legal representatives and be able to participate in the conference via a speakerphone. If this is not practicable, parties and solicitors may be available on separate telephone landlines. The conducting of conferences by mobile phone will occur only in an emergency.

Special needs of parties will be catered for eg interpreters, hearing assistance (section356(4) of the 1998 Act and the Commission's Access and Equity Service Charter).

If an interpreter is required, he or she should attend at the same physical location as the worker. If this is not practicable, the interpreter must be located with the worker's legal representative, for whom the interpreting service is provided.

PROTOCOL FOR TELEPHONE CONFERENCE

Set the framework for the telephone conference

Arbitrators will open the conference by introducing themselves, identifying the matter number, asking participants to identify themselves and ensuring that all participants are able to hear and understand the proceedings.

The standard form of address by parties and legal representatives to an Arbitrator is by name 'Mr' or 'Ms' or as "Arbitrator". The standard form of address by an Arbitrator to parties and legal representatives is by name 'Mr' or 'Ms' unless they express a preference to be addressed by first name.

If an interpreter is required

The Arbitrator will:

• ascertain that the correct language interpreter has been provided and has been introduced to the party for whom the interpreting service is provided;
• advise the participants that the interpreter will if necessary interpret everything said by all participants in the conference;
• ascertain whether this is to be by simultaneous or sequential interpretation;
• if necessary, modify the pace of the conference accordingly, and
• explain that it is not the role of the interpreter to provide additional explanations or answer questions about the process or substance of the proceedings asked by the person for whom the interpretation is performed. The interpreter will relay such questions to the conference participant who can most appropriately answer them. (Commission's Access and Equity Charter).

The Arbitrator will then:

• remind the parties that the primary purpose of the conference is to resolve the dispute;
• address the worker personally and invite him/her to participate fully in the discussions;
• tell the parties that the role of the Arbitrator in the telephone conference is to direct the proceedings and assist the parties with settlement discussions;
• advise parties if the conference is to be recorded;
• where parties are not represented the conference will be recorded. This will be arranged by the Registry when the conference is booked;
• ascertain the stage parties have reached in settlement discussions;
• clarify exactly what the Applicant is claiming, what is in dispute and what orders are sought;
• identify any threshold jurisdictional issues that require a determination of the Commission before the matter can proceed and determine how and when these issues are to be addressed, and
• if parties have not already engaged in settlement discussions prior to the conference, the Arbitrator at this stage will invite the applicant and respondent (including the worker personally) to put forward offers of settlement or suggestions as to how the dispute might be resolved.

Assist discussions about resolution

The Arbitrator will use some or all the following ways to assist discussions:

• review any agreements reached and/or negotiations undertaken prior to the conference;
• establish whether there is a statement of agreed facts and issues;
• identify issues and differences between the parties in relation to each;
• encourage parties to review the strengths and weaknesses of their positions based on the evidence;
• identify barriers to agreement and explore how these might be overcome;
• identify "practical" solutions;
• facilitate realistic settlement offers and bona fide consideration of offers;
• identify the advantages of early settlement and the risks of leaving the matter for determination by a third party, and identify likely best and worst case outcomes for parties based on the material lodged.

If all issues ARE resolved

The Arbitrator will ensure steps are taken to finalise the proceedings.

If some or all issues ARE NOT resolved The Arbitrator will decide:

• whether the dispute will be determined on the papers (see Practice Direction 1)
• or if the dispute must proceed to a conciliation conference/arbitration hearing and/or whether the matter is to be referred to an Approved Medical Specialist for an assessment in relation to the worker's condition or fitness for employment.

The Arbitrator will prepare the matter for the next phase:

• identify issues resolved and agreed by the parties, and then those still in dispute and to be determined;
• the Arbitrator may direct the parties to file a joint signed statement of the facts and issues on which the parties agree, and those that continue to be in dispute (Rule 15.4);
• deal with any issues arising from the limitation on the number of medical reports, which may be relied on by each party (Clauses 49, 50 and 51 of the Workers Compensation Regulation 2010);
• consider any application by any party e.g. Applications to Admit Late evidence (Rule 10.3.3); Applications for the issue of Directions for Production (Rule 13.4) and/or leave to call oral evidence (Rules 14.2 and 14.3)
• If not already provided note how and by whom, and when these documents are to be provided for use in the proceedings.
• (Usually the party who wishes to have the documents admitted into evidence will provide copies to the Commission and the other parties. The onus is on parties wishing to have documents admitted into evidence to provide them to the Registry and serve them on the other parties).
• If the Arbitrator has reached a preliminary view that the matter can be determined on the papers, ask the parties whether there is any reason it should not proceed to determination in this way, and remind parties that a matter may be settled by agreement at any stage.

If the dispute can be determined on the papers

The Arbitrator can decide that a matter is to be determined on the basis of the documents, if he/she is satisfied that sufficient information has been supplied to the Commission in connection with the proceedings (s 354(6) of the 1998 Act). The Arbitrator will:

• identify and confirm the documents to be used as a basis for the arbitration
• where necessary, make directions with a timetable for the filing and exchange of any written submissions (section 356 (5) of the 1998 Act), and
• advise the parties of the time frame for the delivery of the decision.

The standard time for the delivery of a decision on the papers is 21 days from the date of the telephone conference, or the receipt of submissions, whichever is the later.

If the dispute must proceed to conciliation/arbitration

The Arbitrator will:

• confirm the date, time and venue for the conciliation conference/arbitration hearing
• check any facilities or services needed for the conference - video, conference phone, interpreters, and facilities for participants with a disability
• explain the process for the conciliation/arbitration of their case to the parties, and organise the evidence
• identify the evidence to be used as a basis for determination if the matter is not resolved at the conciliation conference
• remind the parties that arbitration by the Commission has a strong non-adversarial flavour and will usually proceed on the basis of the documentary evidence. Oral evidence will not normally be given except where a statement of evidence is filed or appropriately notified (Rules 14.2 & 14.3)
• make any appropriate Direction/Order, and remind the parties of the limitations and restrictions in respect of the calling of oral evidence

RESOLUTION AT THE CONCILIATION CONFERENCE/ARBITRATION HEARING

Purpose of the conciliation conference/arbitration hearing The purpose of the conciliation conference/arbitration hearing is to:

• provide an opportunity for the parties to explore resolution of the dispute face to face;
• if all issues are settled, determine how the matter is to be finalised, and
• if all or some issues are not settled, determine by arbitration.

Venue and timing

The Commission will arrange the conciliation conference/arbitration hearing at a venue most convenient for the applicant, at the time of allocating the matter to an Arbitrator and appointing the telephone conference. The conciliation conference/arbitration hearing will be held approximately 21 days following the telephone conference, unless the Arbitrator has directed that documents be produced under Parts 12 and 13 of the Rules.

Commission venues are set up in an informal conference style consistent with the objectives of the Commission and may, away from the purpose built venue at 1 Oxford St Darlinghurst, include offices, court houses, community centres or council committee rooms (Conciliation Conferences/Arbitration Hearings Venue Policy).

Conciliation conferences/arbitration hearings will be set down for 3 hours unless otherwise indicated.

Participation

Parties are required to attend personally, and to participate throughout the conference unless there are extraordinary circumstances. This is essential to enhance the goal of settlement between the parties.

PROTOCOL FOR CONCILIATION/ARBITRATION

Set the framework for the conciliation conference

Arbitrators will open the conference by introducing themselves, asking participants to identify themselves and ensuring that all participants understand how the proceedings are to be conducted. Reference should be made to the telephone conference protocol and directions made at that time regarding this face-to-face conference.

If an interpreter is required

The Arbitrator will also address those matters set out in the telephone conference protocol above. The Interpreter will generally be booked for 3 hours, unless otherwise requested by the parties and advised by the Arbitrator.

The Arbitrator will then:

• address the worker personally and invite him/her to participate actively in any discussions;
• remind the parties that this is a face-to-face opportunity to resolve the dispute;
• remind the parties that the role of the Arbitrator is to direct the proceedings and in this instance to pro-actively assist the parties with settlement discussions;
• tell the parties that any issues not settled during the conciliation will be immediately arbitrated on the day;
• explain the differing role of the Arbitrator in the conciliation and arbitration phases;
• advise parties that the arbitration phase of the conference is to be recorded (Recording of Proceedings Policy), and ascertain the stage parties have reached in settlement discussions.

Conciliation

The Arbitrator at this stage will invite the parties (including the worker personally) to make any offers of settlement or suggestions as to how the issues remaining in dispute might be resolved.

The Arbitrator will use some or all the following ways to assist discussions:

• identify issues and differences between the parties in relation to each;
• review any agreements reached;
• encourage parties to review the strengths and weaknesses of their positions based on the evidence;
• identify the range of possible outcomes for each party based on the evidence;
• identify barriers to agreement and explore how these might be overcome;
• identify practical solutions;
• facilitate realistic settlement offers;
• identify the advantages of settlement and the risks of leaving the matter for determination by a third party;
• allow parties to undertake private conferencing as between themselves and their legal representatives if that is deemed to be appropriate and productive, and assist parties to draft terms of settlement in accordance with any agreement reached.

The Arbitrator will not engage in private discussions with one party and/or their legal representatives.

If the issues ARE resolved

The Arbitrator will ensure the necessary documentation is completed to ensure finalisation occurs.

If some or all issues ARE NOT resolved

The Arbitrator will prepare the matter for arbitration:

• identify which issues are still in dispute between the parties and update any Statement of Agreed Facts and Issues, or wages schedule;
• identify the issues of fact on which findings will need to be made;
• identify legal issues in relation to which a determination will need to be made;
• identify the evidence to be used as a basis for determination, and ensure all parties are fully aware of all of the evidence to be adduced, including that contained in any witness statements.

The end of conciliation will be marked by a break in the proceedings. During this break, the parties should be encouraged to undertake further settlement discussions in relation to all or any particular issues.

ARBITRATION

Prepare for arbitration

The Arbitrator will:

• activate sound recording equipment and announce the matter number
• remind participants of the change in Arbitrator role from the conciliation conference
• put onto the record any facts and issues agreed during the conciliation phase
• establish whether there were any further matters agreed in the "break" before the arbitration commenced
• record matters agreed, matters to be determined and document any evidence admitted
• obtain the express concurrence from the parties as to the correctness of that summary, and remind the participants that, whilst not bound by the rules of evidence the Commission must bear in mind the following principles in accordance with Rule 15.2
• evidence should be logical and probative
• evidence should be relevant to the facts in issue and the issues in dispute
• evidence based on speculation or unsubstantiated assumptions is unacceptable, and unqualified opinions are unacceptable Parties will have an adequate opportunity to put their case to ensure procedural fairness ((Rule 15.3(c)).

Further evidence and/or submissions

If the Arbitrator determines there is the need for oral evidence to be taken, he or she may do any or all of the following:

• question the parties or witnesses
• take evidence on oath or affirmation (NOTE: The interpreter is also required to take an oath or affirmation as to the interpreting of the evidence given), and permit parties or their representatives, to ask questions of witnesses, by or through the Arbitrator (section 360 of the 1998 Act).

Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:

• contradictory evidence requires to be clarified or tested, or
• adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.

• The Arbitrator will ask the parties and their representatives if there are matters requiring clarification. The Arbitrator may then ask the questions or allow the party or representative to do so.
• Before making a final determination, the Arbitrator may receive oral or written submissions (section 356(5) of the 1998 Act). Submissions will be brief and will address only matters in issue which may be:
  • the findings which the party argues should be made on material questions of fact, referring to the evidence, and/or reference to the applicable law, and the conclusions the party argues should be reached.

Arbitrator will make a determination

The Arbitrator will then either:

• give an oral decision (ex tempore) and adequate reasons which will be recorded and subsequently be available on CD if requested (Note - orders will be issued in written form) (The Commission's Record of Proceedings Policy), or
• reserve the decision and advise the timeframe for delivery of the written decision and reasons.

The Commission's standard for the delivery of reserved decisions is 21 days following the completion of the evidence and submissions.

FINALISATION

Finalisation of Commission proceedings will occur following:

* determination

* consent determinations made by the filing of terms (Rule 15.9 or by oral agreement reduced to writing by the Arbitrator,

* determination by an Arbitrator (ex tempore or written), or

* striking out the proceedings (Rule 1.6);

• discontinuance (Rule 15.7 );
• dismissal for want of due dispatch (Rule 15.8) ,

At any stage where some or all issues are resolved with the assistance of the Arbitrator, the Arbitrator will finalise the proceedings by preparing a statement of reasons for consent orders and/or directions.

For disputes determined by arbitration

The Arbitrator will ensure finalisation occurs by:

• making an ex tempore determination on the day, and issue orders, and
• providing a written decision following an arbitration hearing.

Reasons for decision will include:

• the findings on material questions of fact, referring to the evidence or other material on which those findings were based;
• the Arbitrator's understanding of the applicable law, and
• the reasoning processes that led the Arbitrator to the conclusions reached.

The reasons will be stated sufficiently to make the parties aware of the Commission's view of the case made by each of them (Rule 15.6).

For disputes determined at any stage

The Commission will issue a Certificate of Determination (section 294 (1) & (2) of the 1998 Act).

SOURCE DOCUMENTS TO ASSIST THE CONCILIATION/ARBITRATION

PROCESS IN THE WORKERS COMPENSATION COMMISSION LEGISLATION

LEGISLATION

• Workers Compensation Act 1987
• Workplace Injury Management and Workers Compensation Act 1998

REGULATIONS

*     Workers Compensation Regulation 2010

RULES

*     Workers Compensation Commission Rules 2010

PRACTICE DIRECTIONS

• Practice Direction No.1: Determination of matters without a conciliation conference or arbitration hearing in person or hearing on appeal ('on the papers')
• Practice Direction No.2: Adjournment of Commission proceedings and leave to introduce evidence
• Practice Direction No.3: Expert evidence
• Practice Direction No.5: Reference of question of law on compensation claim to the Workers Compensation Commission constituted by the President
• Practice Direction No. 6 Appeal against a decision of the Commission constituted by an Arbitrator.
• Practice Direction No.7: Directions to produce documents
• Practice Direction No. 8 Notices for production
• Practice Direction No.9: Lodgment of late documents
• Practice Direction No.10 Determination of disputes concerning past weekly payments for a period not exceeding 12 weeks
• Practice Direction No.11 Process for Resolution of Permanent Impairment Disputes Lodged with the Commission
• Practice Direction No 12 Joinder of Other Parties and Disputes

GUIDELINES

• Registrar's Guideline for Standards of Conduct during Proceedings in the Workers Compensation Commission
• WorkCover Benefits

POLICY DOCUMENTS

• Access and Equity Service Charter
• Standards of Conduct During Proceedings
• Arbitrators Code of Conduct
• The Commission's Policy on Recording
• Venue Policy
• Provision of Interpreter Services

February 2011