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ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013

ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013. WORKERS COMPENSATION SCHEME, RECENT CHANGES AND DISPUTE RESOLUTION Rodney Parsons Deputy Registrar Workers Compensation Commission Phone: 8281 6403 Email: Rod.Parsons@wcc.nsw.gov.au. OVERVIEW. Entitlement to workers compensation

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ADMINISTRATIVE DECISIONS TRIBUNAL 12 June 2013

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  1. ADMINISTRATIVE DECISIONS TRIBUNAL12 June 2013 WORKERS COMPENSATION SCHEME,RECENT CHANGES ANDDISPUTE RESOLUTION Rodney Parsons Deputy Registrar Workers Compensation Commission Phone: 8281 6403 Email: Rod.Parsons@wcc.nsw.gov.au

  2. OVERVIEW • Entitlement to workers compensation • Disputing liability • Recent legislative changes • Dispute resolution (focus workplace injury management) • General provisions

  3. STATE OF CONNECTION • All States and Commonwealth enacted own workers compensation legislation • Test for jurisdiction – state of connection (since 1 January 2006) • Where worker usually works, or Where worker usually based, or Where employer principally located

  4. WORKERS COMPENSATION IN NSW • Workers Compensation Act 1987 • Workplace Injury Management and Workers Compensation Act 1998 • Workers Compensation Regulation 2010 • WorkCover Guidelines

  5. WORKER, INJURY AND COMPENSATION • A worker who has received an injury shall receive compensation from the worker’s employer • Includes compensation for dependants in the case of death of a worker

  6. WORKER, INJURY AND COMPENSATION Who is a worker? • Defined in section 4 of 1998 Act • Contract of service (not contract for services) • Legal tests: consideration, intention to create legal relations, mutual obligations • Non-work relationships: family, social, domestic, volunteers, contractors, company directors

  7. WORKER, INJURY AND COMPENSATION Who is a worker? • Indicia: • Control • Remuneration • Equipment • Obligation to work • Timetable & holidays • Deduction of tax • Right to delegate work • Right to dismiss person • Right to dictate hours of work and place of work • Right to exclusive services of person engaged

  8. WORKER, INJURY AND COMPENSATION Who is a worker? • Deemed workers • Jockeys • Taxi drivers • Outworkers • Taxi drivers • Boxers, wrestlers and entertainers

  9. WORKER, INJURY AND COMPENSATION Injury defined • Defined in section 4 of 1987 Act and 1998 Act • Personal injury (injury simpliciter) • Disease • Aggravation, acceleration, exacerbation or deterioration of a disease • Hearing loss • Psychological/psychiatric injury

  10. WORKER, INJURY AND COMPENSATION Injury defined • Arising out of employment or in the course of employment • Journey to/from work (limited application) • Interruptions to work • Disentitling conduct

  11. WORKER, INJURY AND COMPENSATION Compensation • Economic loss • Weekly compensation benefits • Medical or related treatment • Domestic assistance • Non-economic loss • Permanent impairment • Pain and suffering • Property damage • Compensation for death of worker

  12. DISPUTING LIABILITY Section 74 Notice • Notice to worker with reasons and issues that are relevant to reasons when liability in respect of claim disputed Section 54 Notice • Notice to worker before termination or reduction of weekly compensation if: Section 287A Notice • Worker may request review of decision to dispute a claim • If insurer determines that it disputes liability, must give notice to claimant

  13. DISPUTING LIABILITY Insurer must be specific Fletcher International Exports Pty Ltd v Lott [2009] NSWWCCPD 40 • A schedule of “catch all” reasons to dispute liability is unacceptable and inconsistent with express terms of legislation (i.e. s 74)

  14. DISPUTING LIABILITY Insurer must be specific Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 • The practice of denying every conceivable issue regardless of its relevance to a claim at hand does not comply with s 74 and must stop

  15. DISPUTING LIABILITY Psychological/psychiatric injuries Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 • Insurer said there was a dispute as to “whether any psychological injury that you suffer is due to reasonable action taken or proposed to be taken by [the employer] pursuant to section 11A” • Not sufficient to quote the section and its wording – the factual basis for grounding the defence relied upon must be identified • Need clear and precise statement of the reason liability disputed & the issues relevant to the decision to dispute

  16. DISPUTING LIABILITY Psychological/psychiatric injuries Dept of Corrective Services v Bowditch [2007] NSWWCCPD 244 • It is inadequate to identify s 11A as an issue in dispute • Should have identified the grounds for relying on s11A and the “reasonable action” relied on

  17. DISPUTING LIABILITY Psychological/psychiatric injuries Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13 • Broad-brush assertion that employer “acted reasonably in their actions” (re s 11A) does not comply with s 74 • Need to identify action(s) employer relies on and the basis for that reliance

  18. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Weekly compensation • Maximum 260 weeks unless >20% WPI • Amendment to calculation of weekly amount • Internal review of insurer decision • Merits review to WorkCover • Procedural review to WIRO • No legal assistance

  19. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Lump sum compensation • >10% WPI threshold • No claims for further impairment • No compensation for pain and suffering

  20. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Medical and related expenses • Limited to 12 months after weekly compensation ceases, unless seriously injury worker (>30% WPI) • Prior approval of insurer required, except treatment in first 48 hours or exempt treatment or service

  21. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Journey accidents • Must be “real and substantial connection” between employment and accident Heart attack and stroke • Nature of employment must give rise to “a significantly greater risk” of worker suffering injury

  22. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Disease injuries • Employment must be the “main contributing factor” (formerly “a substantial contributing factor”) Legal costs • Each party bears own costs of litigation • ILARS/legal aid scheme

  23. RECENT LEGISLATIVE CHANGES Workers Compensation Legislation Amendment Act 2012 Excluded classes of worker • Police officers, paramedics, fire fighters, coal miners, emergency services volunteers and people with a dust disease claim under the Workers’ Compensation (Dust Diseases) Act 1942 are excluded from the operation of the 2012 amendments

  24. DISPUTE RESOLUTION IN THE COMMISSION Form 2 GENERAL Form 2 LUMP SUM – QUANTUM ONLY SMALL CLAIM – 12 WEEKS PAST & INTERIM PAYMENT DIRECTION Form 1 WORKPLACE INJURY MANAGEMENT Form 6 MEDICAL DISPUTES Form 7 COMMON LAW MEDIATIONS Form 11C COSTS ASSESSMENTS Form 15A

  25. WORKPLACE INJURY MANAGEMENT CHAPTER 3, 1998 ACT • Object: “…to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries” (s 41) • WIM requirements apply even if liability is disputed(s 42)

  26. WORKPLACE INJURY MANAGEMENT INJURY MANAGEMENT AND RTW PLANS • If significant injury (>7 days incapacity), insurer must establish individual injury management plan concerning treatment, rehabilitation and retraining of worker if necessary • Injury management plan established in consultation with employer, worker and nominated treating doctor • When worker ready to return to work, employer/RTW coordinator/rehab provider must develop RTW plan in consultation with parties

  27. WORKPLACE INJURY MANAGEMENT OBLIGATIONS • Worker and employer must participate and cooperate • Worker must comply with obligations under plan and make all reasonable efforts to RTW • Employer must provide suitable employment unless: Not reasonably practicable Worker voluntarily left employment Employment terminated for other reason (s 49) • Options of vocational re-training and work trials

  28. WORKPLACE INJURY MANAGEMENT SUITABLE EMPLOYMENT • Suitable employment (s 32A, 1987 Act) means work for which worker is currently suited having regard to: • Nature of incapacity • Age, education, skills, work experience • RTW plan, occupational rehabilitation being provided Regardless of: • Whether work is available • Availability in the labour market • Worker’s pre-injury employment • Worker’s place of residence

  29. WORKPLACE INJURY MANAGEMENT OBLIGATIONS • WorkCover inspectors can issue improvement notices to employers not meeting RTW and injury management obligations • Range of penalties apply to insurer, employer and worker for failure to comply with Chapter 3 of 1998 Act

  30. WORKPLACE INJURY MANAGEMENT DISPUTE RESOLUTION • “Application to Resolve a Workplace Injury Management Dispute” (Form 6) • Registrar may: • Conciliate to bring parties to agreement • Direct workplace assessment by injury management consultant • Refer dispute to WorkCover Authority • Make recommendation – failure to comply = 50 penalty units unless dispute referred to an Arbitrator

  31. GENERAL DUAL BENEFITS • Commission may reduce weekly payments to prevent dual benefits in respect of same incapacity and period (s 46, 1987 Act) DAMAGES • Worker ceases to be entitled to workers compensation if recovers damages in respect of an injury (s 151A, 1987 Act) • Weekly compensation deducted from damages • Burns v Gladesville Bowling & Sports Club Ltd [2000] NSWCC 53 Payment of monies pursuant to Consent Orders in the Equal Opportunity Tribunal were held to constitute a bar to recovering further compensation

  32. GENERAL OUTCOME OF COMMISSION PROCEEDINGS • What was the result in the Workers Compensation Commission? NO CONTRACTING OUT • Parties cannot contract out of workers compensation liability (s 234, 1998 Act)

  33. PROGRESS OF A MATTER IN THE WORKERS COMPENSATION COMMISSION FROM 1 NOVEMBER 2006 MANDATORY INTERNAL REVIEW LODGMENT/ REGISTRATION OPTIONAL REVIEW GENERAL LUMP SUM 7 Days SMALL CLAIM/ IPD/ INJURY MGT ARBITRATOR SERVICE 7 Days 14 Days SERVICE REPLY 7 Days 14 Days REGISTRAR’S DELEGATE REPLY NO LIABILITY ? YES 14 Days TELE CONFERENCE REPLY ARBITRATOR 14 Days MEDICAL DISPUTE DIRECTIONS ? NO YES TELE CONFERENCE AMS DIRECTIONS s67 21 Days ARBITRATOR 56 Days CONCILIATION/ ARBITRATION 21 Days ASAP 21 Days DECISION

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