Procedural Direction WC6 – Workplace injury management disputes

Introduction

1.    This Procedural Direction applies to proceedings commenced under Div 3 of Pt 5 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The purpose of this Procedural Direction is to provide procedural information in respect of a dispute that concerns a failure by a party to comply with an obligation imposed under Ch 3 of the 1998 Act.

Preliminary

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

3.    The President or a 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.

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

5.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules2021 (the PIC Rules).

Applicable legislation and rules

6.    Parties should be familiar with the following provisions:

(a)   Ch 3 of the 1998 Act;

(b)   Div 3, Pt 5 of Ch 7 of the 1998 Act, and

(c)   Rule 79 of the PIC Rules.

Obligations on employers, insurers and workers

7.    Chapter 3 of the 1998 Act imposes obligations on employers, insurers and workers. The object of the chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following a workplace injury (s 41 of the 1998 Act).

8.    The obligations under Ch 3 apply even where there is a dispute as to liability (s 41A of the 1998 Act).

9.    Any action taken by an employer or insurer under an injury management plan, or for the purpose of rehabilitation of the worker, does not constitute an admission of liability (s 58 of the 1998 Act).

Types of disputes

10.  Disputes resolved under Div 3 of Pt 5 of the 1998 Act generally concern the following issues

(a)   there is no injury management plan, the injury management plan has not been followed, or is disputed;

(b)   there is no return to work plan, the return to work plan has not been followed, or is disputed;

(c)   suitable duties have not been provided or the worker’s capacity to perform suitable employment is disputed;

(d)   whether the worker is making reasonable efforts to return to work in suitable employment;

(e)   the worker’s request for vocational retraining has not been provided, and

(f)    issues concerning the nominated treating doctor (including a failure to nominate a treating doctor, changing the nominated treating doctor, disputed cost of treatment by nominated treating doctor, and the provision of relevant information by the nominated treating doctor at the worker’s authorisation).

Commencement of proceedings

11.   Proceedings are commenced by lodging an Application to Resolve a Workplace Injury Management Dispute. Proceedings may be commenced by a worker, an insurer, or an employer. The applicant must serve a copy of the unsealed application on the respondent (and where the respondent is an employer, the insurer) on the same day it is lodged in the Commission.

12.   Each party may be legally represented in the proceedings. Where a worker is not legally represented, the Commission must refuse to permit an insurer to be represented by an Australian legal practitioner unless leave is granted by the Commission under s 48(4) of the PIC Act. An insurer may be represented by a legal practitioner for the purposes set out in rule 61(2) of the PIC Rules.

13.   The parties to proceedings involving workplace injury management disputes 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).

14.   In the application, the applicant must outline the nature of the dispute and whether any attempts have been made to resolve the dispute prior to the commencement of the proceedings. The applicant must also identify the specific obligation under Ch 3 of the 1998 Act that they allege has been breached.

15.   The applicant should attach to the application all relevant supporting documentation. That documentation 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)    injury management plan(s);

(b)    return to work plan(s);

(c)    medical report(s) and certificate(s) from the worker’s nominated treating doctor, concerning the injury;

(d)    clinical notes from the worker’s nominated treating doctor;

(e)    medical report(s) from an independent medical expert;

(f)     statement(s) addressing the circumstances and consequences of the injury, as well as the injury management issues in dispute;

(g)    evidence about suitable employment (such as position descriptions, responsibilities of the role, or tasks required);

(h)    investigation report(s);

(i)     treatment plan(s) provided by healthcare provider, and

(j)     any other relevant information.

Responding to an application

16.   The respondent to the dispute may, no later than three working days before the first online conference, reply to the application by lodging a Reply to Application to Resolve a Workplace Injury Management Dispute and serving an unsealed copy on all other parties.

17.   All relevant documentation that provides evidentiary support must be attached to the reply, which must be indexed and paginated. Relevant documents may include:

(a)   statement(s) in relation to the issues in dispute;

(b)   evidence concerning why suitable employment is or is not available, and

(c)   any other information on which the respondent intends to rely.

18.  It is not necessary to attach documents provided by the applicant in the application.

19.  Disputes will be listed for an online conference (via audio or audio-visual link), usually 14 days from the date of lodgment of the application. The proceedings will be delegated to a member of the Commission or a member of staff for resolution.

20.  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;

(d)   the insurer’s legal representative (where appointed), and

(e)   any employer representative.

21.  The employer is entitled to separate representation to the insurer at the online conference. Employer representatives, such as HR personnel or rehabilitation providers may be joined as parties to the online conference. Employer representatives may assist in the resolution of the dispute by bringing internal policy and operational knowledge of the employer’s organisation. This may be of assistance, particularly in disputes concerning suitable employment.

22.  If an employer representative seeks to participate in the proceedings, the employer should make a request in writing to the Commission prior to the online conference to ensure that all parties are joined and proceedings are not delayed.

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

24.   Online conferences are not sound recorded, except where the worker is not legally represented.

25.  At the online conference, 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 and clarify the scope of the dispute. Parties should be prepared to enter into genuine discussions to resolve the dispute.

Finalising the dispute

26.  The delegate may deal with the dispute:

(a)   by conciliating the dispute and bringing the parties to agreement, which will be reflected in formal outcome document;

(b)   by directing an injury management consultant or other suitably qualified person to conduct a workplace assessment;

(c)   by referring the matter to the State Insurance Regulatory Authority (the Authority), or

(d)   by making a recommendation.

27.  If the dispute cannot be resolved by agreement, the parties will be given an opportunity to provide submissions with reference to relevant evidence in support of their respective positions. The delegate will then determine the appropriate way to resolve the dispute.

28.  The delegate can recommend:

(a)   that a party to the dispute take specified action, necessary or desirable to remedy the failure to comply with an obligation with which the dispute is concerned;

(b)   compliance with an injury management plan, subject to modifications considered appropriate, and/or

(c)   the employer provide the injured worker with suitable employment, having regard to the requirements of s 49 of the 1998 Act.

29.  Before making a recommendation, the delegate may:

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

(b)   consider the views of all parties;

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

(d)   require further documents to be served and lodged, or

(e)   refer the matter to an injury management consultant or other suitably qualified person to conduct a workplace assessment.

30.  The delegate may issue recommendations orally at an online conference, or in writing at a later date. An oral decision may also be produced in written form to the parties following the online conference.

The role of the injury management consultant

31.  The Workers Compensation Guidelines dated 17 April 2020 provide further guidance in relation to injury management consultants. The parties may agree on an injury management consultant or the delegate will an appoint an appropriate person.

32.  Injury management consultants are doctors experienced in occupational injury and workplace-based rehabilitation. They are approved by the Authority. Their role is to assist insurers, employers, workers, doctors, and the delegate overcome complex return to work and injury management barriers. The employer is obliged to pay for the cost of the injury management consultant.

33.  Issues considered by an injury management consultant include:

(a)   aspects of treatment (if required);

(b)   appropriate recovery or return to work goals;

(c)   complexity of injury or workplace environment;

(d)   clarifying communication issues between insurer, employer and/or nominated treating doctor;

(e)   perceived conflict between the nominated treating doctor's recommendations and the workplace requirements;

(f)   unexplained changes in work capacity, and

(g)   disagreement regarding the suitable work offered to a worker.

34.  An injury management consultant does not comment on:

(a)   the appropriateness of treatment;

(b)   diagnostic procedures, or

(c)   liability for a worker’s compensation claim.

35.  The parties may agree on, or the delegate may determine, the scope of the issues to be referred to the injury management consultant. The injury management consultant will liaise with relevant parties in preparing a workplace assessment report. The injury management consultant may interview the worker in conference with the employer (or alone), discuss the matter with the worker’s nominated treating doctor and visit the worksite.

36.  The injury management consultant will provide a workplace assessment report to the parties and the delegate. If the report does not resolve the issues in dispute, a party may seek to have the matter relisted by notifying the Commission of any outstanding disputes.

Compliance with recommendations

37.  A party to the dispute must comply with the recommendation within 14 days (or other period specified), or request that the President refer the dispute to a member of the Commission for determination.

38.  If a party requests that a matter be referred to a member for determination, that party must provide reasons for requesting that the dispute be referred and reasons for not complying with the recommendation. The Commission may make orders with respect to any matter that can be the subject of a recommendation by the delegate under Div 3 of Pt 5 of the 1998 Act.