Practice Directions • Practice Direction No. 1: Determination of matters without a conciliation conference or arbitration hearing in person ('on the papers') • Practice Direction No. 2: Adjournment of Commission proceedings • Practice Direction No. 3: Expert evidence • Practice Direction No. 4: Correction of 'obvious error' in a certificate of determination • Practice Direction No. 5: Reference of question of law on compensation claim to the Workers Compensation Commission constituted by the President • Practice Direction No. 6: Appeal against a decision of the Commission constituted by an Arbitrator • Practice Direction No. 7: Directions to produce documents • Practice Direction No. 8: Notices for Production • Practice Direction No. 9: Lodgment of late documents • Practice Direction No. 10: Determination of disputes concerning past weekly payments for a period not exceeding 12 weeks. • Practice Direction No. 11: Process for Resolution of Permanent Impairment Disputes Lodged with the Commission • Practice Direction No. 12: Joinder of Other Parties and Disputes

Registrar’s Guidelines • Registrar’s Guidelines on: • Practice on Conciliation/Arbitration in the Commission • Reconsiderations • Standards of Conduct in Proceedings • Work Injury Damages • All available on the website: www.wcc.nsw.gov.au

Recent Amendments • Workers Compensation Commission Rules 2011 –operational on 1 July 2011. • Workers Compensation Legislation Amendment Act 2010 - amends both the 1987 and the 1998 Acts – operational 1 Feb 2011. • Workers Compensation Regulation 2010 – operational on 1 Feb 2011.

Significant changes and tips for preparation • Some significant changes and tips for preparation: • Claim for future medical expenses (Widdup amendment) • Admission of forensic medical reports • Section 73 reimbursement • Tips and traps in preparation: • Properly particularising the claim • Section 74 notices • Workers’ statements of evidence • New amendments in appeal proceedings: • Arbitral appeals • Medical appeals and reconsideration of MAC • Costs

Future Medical Expenses Authorities • NSW Sugar Milling Co-op Ltd v Manning [1998] NSWCC 33; (1998) 44 NSWLR 44 • Widdup v Hamilton [2006] NSWWCCPD 258 Amendment Section 60(5) - Commission now has jurisdiction to determine disputes regarding future medical expenses “The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”

Admission of forensic medical reports Clause 49 (formerly cl 43) • a mandatory provision (like former cl 43). It is not discretionary • Rinker Group Ltd v Mackell [2008] NSWWCCPD 100 • The definition of “forensic medical report” in 49(4) has been amended and now clarifies that a forensic medical report: “(c) does not include a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extended entitlement, in respect of another claim or dispute.”

Admission of forensic medical reports Clause 50 (formerly cl 43AA) – supplementary reports Cl 50(1) - new sub-clauses - a supplementary report may be admitted if it has the purpose of: • clarifying the original report, or • updating original report by confirming, modifying or retracting an opinion expressed in original report, or • addressing issues omitted from the original report, or • addressing an opinion in the other party’s medical report

Section 73 of the 1987 Act Reimbursement for costs of medical examination and report Section 73(1) - medico-legal report deemed section 60 expense Section 73(3) – new section - no payment under s73 until PI claim determined: s73(3)(a) Where a worker succeeds in permanent impairment claim, the cost of the examination and report can be a disbursement cost or section 60 expense (s 73(1)) Where a worker is unsuccessful in permanent impairment claim or receives 0% assessment, cost of report can be claimed as section 60 expense (s73(1)) Transitional provision – retrospective operation (Part 19G Sch 6 of 1987 Act).

Tips and traps in preparing matters in the WCC • Particularising the claim – “nature and conditions” • Section 74 notice • Worker’s statement of evidence

Tips and traps Properly particularising the claim – “nature and conditions” Particulars should precisely identify nature of alleged injury: • personal injury (s 4(a)), or • disease contracted in the course of (s 4(b)(i)), or • aggravation of a disease (s 4(b)(ii)) • Toplis v Coles Group t/as Coles Logistics [2009] NSWWCCPD 70 at [65] • Smith v Parkes Shire Council [2010] NSWWCCPD 130 at [105]-[106]

Tips and traps Section 74 notices • The s 74 notice must contain: • a statement of the reasons the insurer disputes liability • the issues relevant to the decision • the issues genuinely in dispute and • the reasons for the dispute • And the notice must be: • expressed in clear, plain and unambiguous language • evidence-based

Tips and traps Section 74 notice • Section 9A – only plead when it is genuinely in issue • Under s 9A, for compensation to be payable, employment must be a substantial contributing factor to the injury. • Employment does not have to be a substantial contributing factor to the incapacity. • Employment does not have to be a substantial contributing factor to the need for medical treatment.

Tips and traps Workers’ statements • Part 14 r 14.2 of the 2010 Rules • Gardiner v Spotless Services Australia Pty Ltd [2008] NSWWCCPD 129 at [71] • Check list

Arbitral appeals Interlocutory changes • An order of an interlocutory nature is one that does not finally determine parties’ rights (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87 and Licul v Corney [1976] HCA 6; 50 ALJR 439). • From 1 Feb 2011, appeals from interlocutory decisions allowed with leave of Presidential member.

Arbitral appeals Appeal – error of fact, law or discretion Appeals are restricted under s 352 to determination of whether decision appealed against was/was not affected by error of fact, law or discretion + correction of such error.

Arbitral appeals Fresh evidence Commission is not to grant leave to admit fresh evidence unless: • the evidence concerned was not available to the party and could not reasonably have been obtained by the party before proceeding concerned; or • failure to grant leave would cause substantial injustice in the case. • Practice Direction No 6 dated 1 February 2011

Arbitral appeals Fresh evidence Parties’ submissions should address whether: • the evidence is credible • there is high degree of probability that there would have been different decision if evidence had been admitted at arbitration; and/or • it will cause a substantial injustice if the evidence is not admitted

Arbitral appeals Chronology A significant amendment in the 2011 Rules • Application to appeal must now include: “[a] chronology of events, comprising a list of principal events leading up to the lodging of the appeal, numbered consecutively with a date, a short description of each event, and references to arguments in favour of review.” (Pt 16 r 16.2(4)(e)). • The respondent can provide alternative or supplementary chronology (Pt 16 r 16.2(9)).

Arbitral appeals Chronology The chronology should include: • relevant procedural events • principal factual events such as: • date of alleged injury • date of notice of injury • date of notice of claim, date worker first sought medical treatment • date the worker first ceased employment • dates of employment in suitable duties • date on which entitlement to compensation commenced, etc

Arbitral appeals Stay • appeal under s 352 does not stay or otherwise affect the operation of a decision as to weekly compensation payments. These remain payable despite any appeal • section 352(5A) operates retrospectively to all pending appeals

Appeals - Medical appeals Section 327(3) - grounds for appeal against an AMS assessment: (a) deterioration (b) additional relevant information (but only if the additional information was not available and could not reasonably have been obtained before medical assessment) (c ) incorrect criteria, (d) demonstrable error. Section 327(3)(b) - now stricter test Reverses decision in Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515

Medical appeals • Fresh evidence – s 328(3) • Appeal limited to the grounds made – s 328(2) • Siddick v WorkCover Authority of New South Wales [2008] NSWCA 116 • Further assessment or reconsideration • Section 378 • Section 327(6) • Section 329

Costs Workers Compensation Regulation 2010 Costs provisions - change only to numbering of Part and clauses Now under Part 17 (previously Part 19) - now clauses 97 to 143 Schedule 6 - renaming of Parts A, B and C to Parts 1, 2 and 3 In-principle agreement by WorkCover User Group for a general increase to legal fees across the board Agreement yet to be ratified by the Minister

Practice and Procedure Update • Dispute resolution pathways • Common issues in lodgment • Electronic service delivery • Regional service delivery

Pathways for Disputes Expedited Pathway - Application through Form 1 General Pathway – Application through Form 2, Form 2D or Form 20 Lump Sum Quantum Only Pathway – Application through Form 2 Future Medical Expenses Pathway – Application through Form 2

Expedited Pathway Includes: • Interim Payment Directions (IPDs) • weekly compensation up to 12 weeks • medical expenses up to $7,500 • Small claims • Referred to delegate of Registrar • Teleconference within 14 days • Workcover Guide for Interim Payment Directions • Practice Direction 10 – Small Claims

General Disputes Pathway Form 2 Applications for: • Weekly payments > 12 weeks • Medical expenses > $7,500 • Liability for permanent impairment • Pain and suffering Form 2D Applications for: • Compensation for death of a worker Form 20 Applications for (eg): • Weekly compensation whilst overseas • Order for interest • Review of award • Order for refund Referred to Arbitrator

Lump Sum Quantum Only Pathway • Disputes regarding level of permanent impairment only • Referred by delegate of Registrar • AMS to be agreed by parties or Registrar to choose • Medical certificate binding on parties • Pain and suffering threshold • Practice Direction No 11

Future Medical Expenses Pathway Disputes regarding proposed medical treatment or services • Referred by delegate of Registrar to AMS for opinion • Medical Certificate issued • Referred to Arbitrator to settle or determine

Form 2 s66 Matters • On lodgment of Reply matter may be retracked where issues in dispute differ from the Application • Liability in dispute – to General pathway • Liability not in dispute – to Lump Sum Quantum only pathway • Issues relating to DOI, body parts/systems, documents to be referred dealt with by delegate of Registrar or referred to Arbitrator to determine

Issues in Lodgment – Form 2s • Parties restricted to matters previously notified, except by leave of Commission – s289A • Requirement to attach compliance documentation • Liability s74/s54/s287A notice • PI degree – correspondence re exchange of offers • Failure to determine – CAS notification • Parties required to certify compliance • Registrar power to reject application not complying – s288(2)

Issues in Lodgment – Form 2s Form 2 Application • Part 5.6 Permanent Impairment Claims • Information consistent with claim • Correct use of terminology depending on DOI Form 2A Reply • Part 3 Matters in Dispute • List issues in dispute where leave sought to include

Issues in Lodgment – Form 2s Form 2 Application and Form 2A Reply • Part 6 Supporting Documentation • Paginated • Chronological order for part 6.1 - PI degree claims • Chronological order within suggested document groupings for Part 6.2 – other disputes

Issues in Lodgment – Form 11s Form 11C Application for Mediation • 28 days since service of Prefiling Statement • Must not be lodged if defective prefiling dispute on foot • Certificate of Service required if no Response lodged Form 11D Response to Application for Mediation • Due within 21 days of registration of application – Rule 17.10(1) • Must indicate whether declining to participate in mediation as defendant wholly disputes liability – s318(A)(3)

Electronic Service DeliveryOnline Lodgment eScreens What is it? • An online lodgment facility for forms Where can I access it? • Link from the Commissions website or at URL https://escreens.wcc.nsw.gov.au

Electronic Service DeliveryOnline Lodgment What are the benefits of eScreens? • 24/7 access to lodge applications, replies and other forms; • online help text for completing forms and help line support; • faster turn around time for submitting applications; • data validation to help minimise unnecessary errors when submitting forms; • electronic filing - upon filing, an electronic copy of your form will be available for you to view, save and print; • electronic service - a sealed copy of your form will be returned electronically enabling you to serve electronically; and • reduction in printing and photocopying costs. .

Electronic Service DeliveryOnline Lodgment What is the catch with eScreens? • Limited to certain forms • Lodgment to be wholly electronic • Operating platform limited • Broadband v dial-up • File size limitation to 10MB per document • Each document separately uploaded What changes are in progress? • Saving of partially completed forms • All documents uploaded together .

Regional Service Delivery Arbitral Services • Venue policy – approved locations • Two full-time equivalent Arbitrators based in Newcastle • Local sessional Arbitrators for regional matters where possible • Sydney based Arbitrators assigned as regional co-ordinators Medical Services • Regionally based Approved Medical Specialists in most frequently utilised specialties • Option for travel to Sydney where parties agree

Further Information The Commission’s website: www.wcc.nsw.gov.au The Commission’s email: registry@wcc.nsw.gov.au The Commission’s toll free number: 1300 368 040

Thank you for your attention

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