Practice Direction No 15 - Work capacity disputes

1 January 2019

Commencement

1.    This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (2011 Rules) and commences on 1 January 2019.

Application

2.    This Practice Direction applies to disputes dealt with by the Registrar or a member of the Commission concerning a work capacity decision of an insurer under s 43 of the Workers Compensation Act 1987 (the 1987 Act). Parts 9 and 10 of the 2011 Rules may apply to the commencement and resolution of such proceedings.

Purpose

3.    The purpose of this Practice Direction is to provide procedural information in respect of a dispute that concerns a work capacity decision of an insurer.

4.    The procedural information in this Practice Direction applies to work capacity disputes commenced by, and matters that are referred under s 292 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for, expedited assessment.

Types of Disputes

5.    Section 43 of the 1987 Act outlines what constitutes a work capacity decision. A dispute about a work capacity decision that was made on or after 1 January 2019 comes within the Commission’s exclusive jurisdiction to examine, hear and determine all matters arising under the workers compensation legislation.

6.    The previous scheme for the resolution of work capacity disputes contained in Subdiv 3A of Div 2 of Part 3 of the 1987 Act continues to apply to an existing work capacity decision during the transitional review period, which is scheduled to expire by 30 June 2019 or by regulation. The Commission cannot hear a dispute about a work capacity decision made before 1 January 2019 until after the transitional review period.

7.    A work capacity decision that has been reviewed under the repealed Subdiv 3A of Div 2 of Part 3 of the 1987 Act cannot be referred to the Commission for determination.

Stay of a disputed work capacity decision

8.    Where the dispute is referred to the Commission before the required expiry period in s 80 of the 1998 Act, the decision is stayed and the insurer cannot take any action based on the decision (s 289B of the 1998 Act). This stay operates from the time the Registrar accepts the dispute for referral. The Commission may order that a stay ceases to have effect, if it considers that a party to the dispute is unreasonably delaying proceedings.

Commencing proceedings

9.    There are two pathways to commence a work capacity dispute in the Commission:

(a)   where the dispute concerns only a work capacity decision, or work capacity decision and past medical expenses up to $9,250.50 (as indexed), proceedings are commenced by lodging in the Commission an Application for Expedited Assessment (Form 1), and

(b)   where the dispute concerns a work capacity decision and any other decision of an insurer concerning an entitlement under the workers compensation legislation, proceedings are commenced by lodging in the Commission an Application to Resolve a Dispute (Form 2).

Processing applications

10.    The Commission will review all applications lodged and determine the appropriate pathway to resolve the dispute, regardless of the form used to commence proceedings.

11.    Matters commenced through the incorrect form will be referred to the appropriate pathway.

12.    Matters that proceed in the Form 1 pathway will be dealt with expeditiously. Section 292 of the 1998 Act empowers the Commission to refer a dispute lodged in the Commission for expedited assessment under Part 5 (expedited assessment), and the determination of the dispute by the Commission will be deferred. Powers under Part 5 are exercised by the Registrar or an Arbitrator (ss 296 and 303 of the 1998 Act).

13.    Matters that proceed in the Form 2 pathway will be referred to an Arbitrator for determination using the Commission’s standard dispute resolution process and timetable. For further information, see the Practice of the Conciliation Arbitration Process in the Workers Compensation Commission.

Making an application

14.    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. Depending on the issues in dispute, relevant documents may include:

(a) worker statement, addressing the circumstances and consequences of the injury, capacity for work, pre and post injury duties and hours of work;

(b) previous work capacity decisions;

(c) claim forms;

(d) dispute notices and internal review decision of insurers;

(e) details of any lump sum compensation for permanent impairment paid to the worker;

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

(g) list of payments;

(h) leave history;

(i) promotion offer/acceptance;

(j) other correspondence about change of circumstances of employment (such as reduction or increase in hours)

(k) financial records:

(i) wages;

(ii) pay slips;

(iii) tax returns, and

(iv) award information.

(l) employment contract;

(m) factual investigation reports;

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

(o) medical reports from a forensic medical expert that addresses relevant issues such as diagnosis, injury mechanism, causation, aggravation, disease process, work capacity and hours of work if relevant;

(p) clinical notes;

(q) medical certificates;

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

(s) reports from rehabilitation providers, workplace assessors, or independent medical consultants;

(t) vocational assessments;

(u) job seeking logs and work trial information, and

(v) any other relevant information.

Responding to an application

15.    The employer or employer’s insurer may lodge in the Commission a reply to the application.

16.    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 [14]) and a schedule of any weekly payments made, as well as any documentation used in the calculation of PIAWE.

17.    Where the dispute concerns a decision about the amount of an injured worker’s pre injury average weekly earnings or current weekly earnings, a Wages Schedule (Form 18) must be prepared. For information on completing a Wages Schedule, please see Practice Direction 13 – Schedule of Earnings.

Resolving disputes via expedited assessment

18.    This section and the following sections apply to disputes referred for expedited assessment. For other disputes, refer to the Practice of the Conciliation Arbitration Process in the Workers Compensation Commission.

19.    Proceedings referred under Part 5 will be determined according to s 297 of the 1998 Act. The jurisdictional limit on an interim payment direction in s 298 of the 1998 Act does not apply to a decision by an insurer to discontinue or reduce weekly payments of compensation on the basis of a work capacity decision (s 297(1A)).

20.    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.

21.    The Registrar will generally delegate the dispute proceedings to a member of staff or an Arbitrator, exercising the functions of the Registrar.

22.    In resolving the dispute, the Registrar will have regard to s 297 of the 1998 Act. The presumption in favour of a worker in s 297(3) does not operate in circumstances where a decision notice has been issued under s 78 of the 1998 Act (see cl 42 of the Workers Compensation Regulation 2016).

23.    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.

24.    The Commission will inform the parties of the date and time of the teleconference after the application is registered. It is expected that the following parties will be available for and will participate in the teleconference:

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).

25.    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.

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

27.    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.

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

Determining the dispute

29.   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.

30.   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.

31.    In the alternative, 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. An interim payment direction for a work capacity dispute is not limited to a period of 12 weeks.

32.    In limited circumstances, the Registrar may determine that the matter should be referred to an arbitrator for determination, for example, where cross examination of a witness is required. In such circumstances, the matter will be listed for conciliation/arbitration hearing and the parties will be separately advised of the date and time.

Compliance

33.    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.

34.    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

35.    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).

36.    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.

Michael Snell

Acting President