Procedural Direction WC5 – Work Capacity Disputes

Introduction

1.    The purpose of this Procedural Direction is to provide information in respect of a dispute that concerns a work capacity decision of an insurer under section 43 of the Workers Compensation Act 1987 (the 1987 Act). Part 9 the Personal Injury Commission Rules 2021 (the PIC Rules) apply to the commencement and resolution of such proceedings.

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

Preliminary

3.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

4.    The President or member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

5.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

6.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the PIC Rules.

Types of disputes

7.    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.

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    A work capacity decision that has been reviewed under the repealed Subdivision 3A of Division 2 of Part 3 of the 1987 Act cannot be referred to the Commission for determination.

Stay of a disputed work capacity decision

9.    Where the dispute is referred to the Commission before the required expiry period in section 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). 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

10.  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 $9,669.20 (as indexed), proceedings are commenced by lodging in the Commission an Application for Expedited Assessment, 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.

11.  The parties to work capacity dispute proceedings have a duty to cooperate with the Commission and to give effect to the objects of the PIC Act and the guiding principles, which include to resolve the real issues in the proceedings justly, quickly, cost effectively and with as little formality as possible (ss 3 and 42 of the PIC Act).

Processing applications

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

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

14.  Work capacity disputes 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 President (ss 296 and 303 of the 1998 Act).

15.  Matters that involve a work capacity dispute and another type of compensation will be referred to a member for determination using the Commission’s standard dispute resolution process and timetable. For further information, see Procedural Direction PIC10 Hearing of Proceedings.

Making an application

16.  Proceedings are commenced by lodging the appropriate form in the Commission. The following service rules apply:

(a)   where commencement is via an Application for Expedited Assessment, an unsealed copy of the application must be served on the respondent the same day as the application is lodged, and

(b)   where commencement is via an Application to Resolve a Dispute, a sealed copy of the application must be served within 7 days.

17.  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:

1. wages;
2. pay slips;
3. tax returns, and
4. 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

18.  The employer or employer’s insurer may lodge in the Commission a Reply to the application.

19.  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 [17]) and a schedule of any weekly payments made, as well as any documentation used in the calculation of PIAWE.

20.  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 must be prepared. For information on completing a Wages Schedule, please see Procedural Direction PIC5 – Schedule of Earnings

Resolving disputes via expedited assessment

21.  Proceedings referred under Part 5 will be determined according to section 297 of the 1998 Act. The jurisdictional limit on an interim payment direction in section 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)).

22.  Disputes will be listed for an expedited online conference (via audio or audio-visual link), usually 14 days from the date of lodgment of the application. However, if the President is satisfied that sufficient information has been supplied in connection with the application, the President may determine the application without holding an online conference.

23.  The President will delegate the dispute proceedings to a registrar, a member, or a member of staff (the delegate), who will exercise the functions of the President.

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

25.  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 President to deal with the dispute.

26.  The Commission will inform the parties of the date and time of the online conference after the application is registered. It is expected that the following parties will be available for and will participate in the online 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).

27.  In the circumstances where the worker is not legally represented, the insurer is not permitted to be legally represented subject to leave being granted by the Commission (s 48 of the PIC Act).

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

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

30.  At the online conference, the delegate will determine the appropriate way to resolve the dispute. The delegate will attempt to bring the parties to an agreed resolution of the dispute. The online 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 online conference.

31.  If a worker is not legally represented the online conference will be sound recorded.

Determining the dispute

32.  If the parties agree to resolve the dispute, the delegate will issue a consent interim payment direction shortly after the conclusion of the online conference.

33.  The delegate 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 delegate:

(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.

34.  In the alternative, the delegate may determine the dispute and provide oral reasons during the online 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.

35.  In limited circumstances, the delegate may determine that the matter should be referred to a member 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

36.  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.

37.  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

38.  An interim payment direction on application of a party or on the delegate’s own motion (s 299of the 1998 Act). An application to revoke an interim payment direction is made by filing an Application to Revoke an Interim Payment Direction.

39.  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 delegate may also amend or reissue an interim payment direction.