Workers compensation disputes

Disputes are assigned to the most appropriate dispute resolution pathway.

Legal disputes

The types of disputes that go through this pathway are about entitlements to weekly compensation, medical and related expenses compensation, lump sum compensation for permanent impairment and payments in respect of the death of a worker.

The issues to resolve in a dispute could include whether an injury has occurred, whether the injury happened at work, whether work was a substantial contributing factor to the injury, whether medical treatment is reasonably necessary, whether the injured person was a worker, which body parts were injured, and the amount of compensation payable.

The pathway begins with the use of informal dispute resolution techniques to try to resolve the dispute by agreement between the parties. Initially, this is done with the parties and their representatives attending a teleconference. If the parties cannot resolve the matter at this stage, it will proceed to a conciliation conference.

If the dispute is not resolved at the teleconference or conciliation conference, it will progress to a formal arbitration hearing where the Commission will decide the dispute.

The Commission’s flexible approach provides multiple mechanisms for the conduct of the conciliation conference and arbitration hearing. Parties can attend in person, via telephone, or via videoconferencing, depending on the circumstances of the case and external factors.

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Lodgment
Lodgment Teleconference Conciliation conference Arbitration hearing Agreements and decisions Appeal

Lodgment

Applications to resolve a dispute through the legal disputes pathway, and responses to dispute resolution applications, must be lodged with the Commission.

When to lodge a dispute application

Before a worker can lodge an application to resolve a dispute with the Commission, the worker must have first submitted a claim on their employer or their employer’s workers compensation insurer.

If the worker is not satisfied with the insurer’s decision about their claim, or any part of their claim, they may lodge an application to resolve a dispute with the Commission. The worker can also lodge an application to resolve a dispute if:

  • the insurer has failed to make a decision in relation to their claim
  • the insurer has sent a letter stating that all or part of the claim has not been accepted or is no longer accepted, or
  • they have received a letter from the insurer stating that the claim has been accepted but the worker disagrees with the amount of compensation payable.

Workers who disagree with all or part of the insurer’s decision have the right to request a review by the insurer before lodging an application with the Commission.

The person or party lodging the application is called the applicant. The person or party responding to the dispute resolution application is called the respondent.

The Commission cannot resolve all workers compensation disputes because the law requires some classes of workers to seek assistance with their claims from other agencies responsible for their administration. These classes of workers include coal miners, volunteer rescue workers and workers who suffer specified dust-related conditions.

How to lodge an application

Lodging an Application to Resolve a Dispute is the first step for the applicant in applying to have a dispute resolved by the Commission. Applications must be lodged using the Commission’s online portal. Click here  for further information and to access the portal.

Most applicants are legally represented, with the dispute resolution application being lodged by the legal representative on their behalf.

The application can only be lodged through the Commission’s online lodgment portal. More information about lodgment methods is available on our lodge a dispute page.

As a teleconference will be booked 28 days from the date the application is accepted by the Commission (unless an independent medical examination is first required), applicants must ensure they are available to participate four weeks after the lodgment date. Teleconference dates are not usually changed, so it may be best to delay lodgment, if needed, until the teleconference can be booked at a date the applicant and their legal representative are available. All parties will be notified of the date and time of the teleconference by the Commission.

All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process.

The applicant must serve a sealed copy of the application on the respondent within seven days of the dispute resolution application being registered by the Commission. All information attached to the application must also be provided to the other party. This early exchange of relevant information assists with discussions to help resolve the dispute.

How to respond to an application

The next step in the lodgment process is for the respondent to respond to the dispute resolution application by lodging a reply to application to resolve a dispute (Form 2A). Most respondents are legally represented and the reply is lodged by the legal representative on their behalf.

The reply can be lodged through the Commission’s online lodgment portal. More information about lodgment methods is available on our lodge a dispute page.

The dispute application will proceed even if the respondent chooses not to respond or does not respond in the required time, which is 21 days from date of registration of the dispute application.

There may be more than one respondent to proceedings and each respondent should complete and lodge a separate reply to application to resolve a dispute (Form 2A).

All information relevant to the dispute, which is not attached to the application, must be attached to the reply and provided to the other party. It may not be possible to include further information later in the dispute resolution process.

How long does resolving a dispute take

The time taken to resolve a dispute depends on:

  • the issues in dispute
  • the standard of preparation by the parties
  • the willingness of parties to genuinely attempt resolution
  • whether a decision is appealed.

The Commission aims to resolve disputes as quickly as possible and will encourage the parties to resolve their dispute at the earliest opportunity.

Relevant resources

Procedural Direction PIC4 - Expert witness evidence

Procedural Direction PIC3 - Documents and late documents

Procedural Direction PIC9 – Production of Information and Calling of Witnesses

Procedural Direction PIC5 - Schedule of earnings

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Teleconference

The teleconference is the first stage in the legal disputes pathway. A substantial number of legal disputes are resolved during this stage.

What to expect at a teleconference

The teleconference is conducted by a Member , who will have read all the evidence on which each party relies.

The teleconference may be attended by:

  • the worker
  • the worker’s legal representative
  • the insurer
  • the insurer’s legal representative
  • the employer, especially if the employer is a self-insurer
  • an interpreter, if needed.

Once all parties are connected to the teleconference, the Member will be connected to the call and will introduce the parties and explain the process. Members are required to use their best efforts to bring the parties to an acceptable resolution.

At any stage during the teleconference, there is a facility for either party to have a private conversation with their legal representative, even if they are not in the same location. The Member will use the teleconference facilities to arrange this.

If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination, and the Commission’s file will be closed.

If the dispute does not resolve during the teleconference, the Member will decide how the matter should proceed. Sometimes the dispute will be determined by the Member after the teleconference. More commonly, the dispute will proceed to the next stage of the resolution process, usually a face-to-face conciliation conference.

What happens during the teleconference

During the teleconference, the Member will assist the parties to identify the issues in dispute and encourage them to reach an agreement about the dispute or part of the dispute. The Member will confirm:

  • that all parties understand the process
  • whether everyone agrees on the facts or issues in dispute
  • any legal or threshold  issues that must be decided.

As the Member is independent and impartial, they will not talk to any party unless all other parties are present.

Preparing for the teleconference

The parties involved in a teleconference will usually choose to participate from a quiet location where there are no distractions or background noise. Workers can participate from their home or they may prefer to attend their legal representative’s office to participate.

Only documents that have previously been lodged with the dispute resolution application, or the reply to the  dispute resolution application, can be referred to during the teleconference, unless the Commission allows the addition of further documents.

Relevant resources

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.7A - Directions for production

Practice Direction No.7B - Summons to attend

Practice Direction No.9 - Applications to admit late documents

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

Provision of interpreter services

Arbitrator Code of Conduct

Access and equality charter

Forms - word

Form 8 - Direction for production

Form 8A - Application for leave to service a direction for production outside the state

Form 8B - Summons to attend

SEPA 8A and 8B Order

For PDF versions of forms click here

Guides to completing forms

Guide to completing Form 8

Guide to completing Form 8B

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Resources

What to expect at a Teleconference (Arabic) - Workers Compensation Commission
What to expect at a Teleconference - Workers Compensation Commission
What to expect at a Teleconference (Macedonian) - Workers Compensation Commission
What to expect at a Teleconference (Mandarin) - Workers Compensation Commission
What to expect at a Teleconference (Serbian) - Workers Compensation Commission
What to expect at a Teleconference (Spanish) - Workers Compensation Commission
What to expect at a Teleconference (Vietnamese) - Workers Compensation Commission

Conciliation conference

A conciliation conference is usually a face-to-face meeting conducted by a Member, who will attempt to bring the parties to agreement. The Commission also conducts conciliation conferences by video and by telephone.

When will the conciliation conference take place

The matter may be scheduled for a conciliation conference if the parties did not reach an agreement at the teleconference.

The conciliation conference is usually within a few weeks of the teleconference. It may be delayed by up to eight weeks after the teleconference if additional documents (for example, medical records) need to be provided to the Commission.

What to expect at a conciliation conference

A face-to-face conciliation conference is held at the Commission’s premises in Sydney, or at one of the Commission’s regional locations. Conferences can also be held via video or telephone, depending on the circumstances of the case and the needs of the parties.

The Member who conducted the teleconference will usually also hold the conciliation conference.

The conciliation conference may be attended by:

  • the worker
  • the worker’s legal representative
  • the insurer
  • the insurer’s legal representative
  • the employer, especially if the employer is a self-insurer
  • an interpreter, if needed.

The Member will explain the process, assist the parties to identify the issues in dispute, then attempt to bring the parties to an agreement about some, or all, of the issues. The parties may be allowed some time to discuss the issue between themselves.

As the Member is independent and impartial, they will not talk to any party unless all other parties are present.

If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination, and the Commission’s file will be closed.

If the Member forms the view that the dispute cannot be resolved by agreement of the parties, the dispute will proceed to an arbitration hearing, which will take place on the same day as the conciliation conference.

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Resources

What to expect at Conciliation and Arbitration (Arabic) - Workers Compensation Commission
What to expect at Conciliation and Arbitration - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Macedonian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Mandarin) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Serbian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Spanish) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Vietnamese) - Workers Compensation Commission

Arbitration hearing

An arbitration hearing is a formal proceeding where the parties make submissions, evidence may be given by witnesses, and a Member will make a decision in relation to the dispute.

When will the arbitration hearing take place

The Member will only proceed to an arbitration hearing if she or he forms the view that the dispute cannot be resolved by agreement of the parties at the conciliation conference.

The arbitration hearing will be set for the same date as the conciliation conference. Three hours in total will have been assigned by the Commission for both the conciliation conference and, if needed, an arbitration hearing. Disputes are often resolved in less time.

What to expect at an arbitration hearing

After the conciliation conference ends, the arbitrator and parties will take a short break and the room will be prepared for a the arbitration hearing. The arbitration hearing will be sound recorded. The legal representatives for each party will make submissions. Oral evidence from witnesses is usually not required.

After the arbitration hearing, the Member will make a legally binding decision which finalises the dispute. Sometimes the decision will be given orally after the hearing, but more commonly it will be given in writing within the next 21 days.

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Resources

What to expect at Conciliation and Arbitration (Arabic) - Workers Compensation Commission
What to expect at Conciliation and Arbitration - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Macedonian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Mandarin) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Serbian) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Spanish) - Workers Compensation Commission
What to expect at Conciliation and Arbitration (Vietnamese) - Workers Compensation Commission

Agreements and decisions

A dispute may be finalised or resolved in three ways: by agreement between the parties, by the applicant discontinuing the application, or by the Member making a decision.

When an agreement is reached between parties

The parties may come to an agreement about a dispute at any time before the dispute is determined by a Member. Parties may file consent orders so the Commission can endorse the terms of the resolution and issue a formal record of the outcome.

When a settlement is reached at the teleconference or conciliation conference

If a settlement is reached at the teleconference or conciliation conference, the Member will discuss the orders to be made with the parties and prepare a Certificate of Determination setting out the orders the parties consented to.

When the dispute resolution application is discontinued

The applicant may discontinue an application at any time. An applicant can decide to discontinue proceedings or any part of the proceedings by lodging an election to discontinue proceedings (Form 14B). The applicant must send this form to all the other parties involved in the dispute.

At any time, all parties involved in a dispute may reach an agreement and decide to discontinue proceedings or any part of proceedings. They must let the Commission know by lodging an agreement to discontinue proceedings (Form 14A). Copies of the form must be sent to all parties.

When dispute resolution proceedings are discontinued, the Commission will close its file. This means no further action will be taken in the proceedings. A party may wish to bring fresh proceedings, for example, when further relevant evidence is obtained.

When a decision is made by a Member

If no agreement is reached between the parties, a Member will determine the dispute and the Commission will issue a Certificate of Determination to all parties setting out the Member’s decision and reasons for their decision.

The Commission publishes all written decisions made by its Members. The Commission will also publish the details of other decisions, including matters resolved by consent, on a register on this website. To find a decision made by the Commission, visit the decision page.

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Appeal

A party may appeal against a decision by a Member.

When is an appeal possible?

Any party in a legal dispute can appeal the Member’s decision if they believe the decision contains an error of fact, error of law or an error in exercising a discretion. The appeal process exists to correct these errors. The appeal is not a rehearing of the dispute resolution proceedings.

An appeal can only be made if the amount of compensation at issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against.

How to appeal

An appeal against a decision of a Member must be made by lodging an appeal against decision of arbitrator (Form 9). The appeal application will not be accepted or allowed to proceed unless the Registrar is satisfied that it meets procedural requirements.

Either party may appeal. Appeals are determined by the Commission’s presidential members.

How does an appeal work?

An appeal is referred to the President or a deputy president, referred to as presidential members, for determination. The presidential member may give directions as to how the appeal is to proceed.

Presidential members may determine appeals by reference only to the written submissions lodged by the parties. The presidential member may convene a teleconference or a formal hearing.

The presidential member can confirm or revoke a member’s decision. If the original decision is revoked, the presidential member may replace the decision with a new decision or refer the dispute to an arbitrator to make a new determination. In appeals about decisions concerning the degree of permanent impairment, the presidential member may direct that the matter be referred for assessment by an approved medical specialist.

If either party is aggrieved by the determination made by a presidential member, they can appeal to the NSW Court of Appeal on the grounds that the law was applied incorrectly.

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