Practice Direction No 10 – Interim payment directions for weekly payments of compensation or medical expenses compensation

30 October 2018

Commencement

1. This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 and commences on 30 October 2018. It replaces Practice Direction No 10 – Determination of Disputes Concerning Past Weekly Payments for a Period Not Exceeding 12 Weeks, dated 8 September 2011.

Application

2. This Practice Direction applies to disputes dealt with by the Registrar or a member of the Commission under s 292 and Div 2 of Pt 5 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Purpose

3. The purpose of this Practice Direction is to provide procedural information in respect of applications for interim payment directions.

Types of disputes

4. Interim payment directions may be issued for:

• past and future weekly payments of compensation, and/or
• past medical expenses.

Weekly payments of compensation

5. The Registrar may issue an interim payment direction for weekly payments of compensation for a period of up to 12 weeks. However, in respect of past weekly payments, an interim payment direction cannot exceed a period of 10 weeks.

6. The Registrar may issue an interim payment direction for weekly payments of compensation in respect of a failure to commence provisional weekly payments of compensation and where initial notification of injury constituted a claim for the compensation.

7. If a period of incapacity results from an injury after an interim payment direction has been issued, a further interim payment direction can be issued.

Medical expenses compensation

8. The Registrar may issue an interim payment direction for medical expenses compensation, for the expenses that the worker incurred, of no more than $9,250.50. This monetary limit is adjusted on 1 April and 1 October each year. For the current adjusted amount, refer to the State Insurance Regulatory Authority workers compensation benefits guide.

9. The Registrar cannot make an award for proposed or future medical expenses. Only the Commission constituted by an Arbitrator can determine disputes concerning proposed medical treatment and services (see s 60(5) of the Workers Compensation Act 1987 (the1987 Act)). These disputes must be commenced by lodging in the Commission an Application to Resolve a Dispute (Form 2).

Commencing proceedings

10. Disputes concerning the payment of weekly compensation and medical expenses are commenced by lodging in the Commission an Application for Expedited Assessment (Form 1). Disputes may include:

• the failure by an insurer to determine a dispute within 21 days after a claim for weekly compensation or medical expenses compensation is made, or
• the failure to commence provisional payments of compensation within seven days of notification of an injury.

11. On the same day the application is lodged in the Commission, the worker must serve a copy of the unsealed application on the employer and the employer’s insurer.

12.        All relevant supporting documentation must be attached to the application, and must be indexed and paginated. Documents attached should assist the resolution of the dispute and provide evidentiary support for the application. Relevant documents may include:

(a) worker statement, addressing the circumstances and consequences of the injury;

(b) claim forms;

(c) dispute notices;

(d) relevant correspondence, including correspondence concerning pre-injury average weekly earnings;

(e) list of payments;

(f) factual investigation reports;

(g) medical reports from the worker’s treating doctor concerning the injury;

(h) medical reports from a forensic medical expert that address relevant sections of the legislation, including ss 4, 9A, 11A, 33, and 60 of the 1987 Act;

(i) clinical notes;

(j) medical certificates;

(k) work capacity decisions;

(l) a schedule of medical expenses, which sets out the cost of any treatment received;

(m) accounts/receipts for claimed medical expenses;

(n) financial records:

• wages;
• pay slips;
• tax returns;
• and award information.

(o) injury management plans, return to work plans, and treatment plans provided by healthcare providers, and

(p) any other relevant information.

Responding to an application

13. The employer or employer’s insurer may lodge in the Commission a Reply to the Application for Expedited Assessment (Form 1B).

14. A copy of the unsealed reply must be served on the worker, no later than three working days before the date of the telephone conference.

15. All relevant documentation that provides evidentiary support in response to the claim must be attached to the reply, and must be indexed and paginated. It is not necessary to provide documentation which is already attached to the application. Relevant documents may include those listed above (under [12]) and a schedule of any weekly and/or medical expense payments made.

16. Where the respondent disputes quantification of the worker’s entitlement to weekly compensation, a Wages Schedule (Form 18) must be prepared.Resolving disputes.

17. The Registrar may deal with a dispute referred to the Commission for determination by expedited assessment and may defer determination of the dispute while the dispute is being dealt with by expedited assessment (s 292 of the 1998 Act).

18. Disputes will be listed for an expedited telephone conference, usually 14 days from the date of lodgment of the application. However, if the Registrar is satisfied that sufficient information has been supplied in connection with the application, the Registrar may determine the application without holding a teleconference.

19. The Registrar will generally delegate the dispute proceedings to a member of staff or Arbitrator for resolution.

20. In resolving the dispute, the Registrar will have regard to s 297 of the 1998 Act which contains rebuttable presumptions in favour of the worker. The absence of a presumption in favour does not limit the circumstances in which an interim payment direction may be issued, nor remove the jurisdiction of the Registrar to deal with the dispute.

21. An interim payment direction for weekly payments of compensation is presumed to be warranted unless the Registrar considers that any of the following factors exist:

(a) the claim has minimal prospects of success;

(b) the worker has returned to work;

(c) the injury was not reported by the worker as soon as possible after the injury;

(d) there is not enough medical evidence concerning the worker’s period of incapacity, or

(e) any other circumstance prescribed by the regulations.

22.An interim payment direction for medical expenses is presumed to be warranted where an injury management plan is in place or the insurer has accepted that the worker has received an injury, provided the relevant treatment or service is reasonably necessary:

(a) to prevent the worker’s condition deteriorating; or

(b) to promote the worker’s early return to work, or

(c) to relieve the worker’s significant pain or discomfort.

23. The Commission will inform the parties of the date and time of the telephone conference after registration of the application. It is expected that the following parties will be available to participate in the telephone conference:

(a)the worker;

(b)the worker’s legal or union representative (where appointed);

(c)the insurer’s claims officer, and

(d)the insurer’s legal representative (where appointed).

24. An employer representative may also participate in the telephone conference. A request to participate should be made to the Commission prior to the telephone conference to ensure that all parties are joined and proceedings are not delayed.

25. It is expected that parties will have had preliminary discussions with each other regarding resolution of the dispute prior to the telephone conference.

26. At the telephone conference, the Registrar will determine the appropriate way to resolve the dispute. The Registrar will attempt to bring the parties to an agreed resolution of the dispute. The telephone conference is an opportunity for the parties to canvass all relevant issues, clarify the scope of the dispute, and resolve the matter without the need for a formal determination. Parties should be prepared to enter into genuine settlement discussions during the telephone conference.

27. If a worker is not legally represented the telephone conference will be sound recorded.

28. If the parties agree to resolve the dispute, the Registrar will issue a consent interim payment direction shortly after the conclusion of the telephone conference.

29. If the dispute does not resolve, the Registrar will give the parties an opportunity to provide submissions with reference to relevant evidence in support of their respective positions. Before determining the dispute or issuing a decision, the Registrar:

(a)will consider the information contained in the application and reply;

(b)will consider the views of all parties;

(c)may request additional information from the worker, employer and/or insurer, or

(d)may require further documents to be lodged and served.

30. The Registrar may determine the dispute and provide oral reasons during the telephone conference or determine the dispute in writing with reasons at a later date. In such matters an interim payment direction will be issued detailing the outcome of the application, which may or may not include an order for payment of compensation.

31. The Registrar may impose conditions on any interim payment order. The conditions may include a requirement that the worker submit medical certificates certifying the period of incapacity. In determining whether conditions should be imposed, the Registrar will consider the objectives of the Commission and the overall objectives of the workers compensation system.Compliance.

32. A person who fails to comply with an interim payment direction is guilty of an offence (s 300 of the 1998 Act). The maximum penalty for failure to comply with an interim payment direction is $5,500.33.The payment of compensation in accordance with an interim payment direction is not an admission of liability (s 301 of the 1998 Act). Revocation of an interim payment direction.

34. The Registrar may revoke an interim payment direction on application of a party or on the Registrar’s own motion (s 299 of the 1998 Act). An application to revoke an interim payment direction is made by filing an Application to Revoke an Interim Payment Direction (Form 1A).

35. If an interim payment direction is revoked, the obligation to make payments under the direction ceases, but this does not affect the requirement to make payments due before the revocation. The Registrar may also amend or reissue an interim payment direction.

His Hon Judge Greg Keating

President