THE WORKERS COMPENSATION
COMMISSION
1. ESTABLISHMENT OF THE COMMISSION
The Workers Compensation Commission of NSW (‘the Commission’) commenced operation on 1 January 2002 as the dispute resolution forum for workers compensation disputes in relation to claims lodged on or after that date. Since 1 April 2002 the Commission has dealt with all workers compensation disputes, regardless of the date of claim, other than those involving coal miners, police appeals and some other specified cases. The Commission took over the jurisdiction of the Workers Compensation Resolution Service and on 1 January 2004 the Commission assumed most of the remaining jurisdiction of the Compensation Court of NSW (‘the Court’) (see the Compensation Court Repeal Act 2002).
Debate on the current workers compensation reforms in New South Wales started on 8 June 2000, with a statement by the Minister (NSW Hansard P6879F) outlining ten principles to underpin a ‘robust and comprehensive reform package’. In 2001, significant changes were made to the workers compensation scheme in NSW through amendments passed to the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the Workers Compensation Act 1987 (‘the 1987 Act’) in accordance with those principles. The amendments included provisions for: improved assistance to injured workers and employers, improved claims management processes, proper commencement of weekly compensation payments, injury management initiatives prior to liability being determined, increased incentives for improved service delivery by insurers, and increased penalties for delay in decision-making. The second principle outlined by the Minister was to ‘review dispute resolution processes and structures and to develop better dispute prevention measures’ and in accordance with the first part of that principle, the changes included the establishment of the Commission through the 1998 Act.
On 1 November 2006 some “fine-tuning” amendments of the workers compensation legislation, relevant to the Commission took effect, together with relevant changes to the Regulation, Rules, Forms, Guidelines and Practice Directions.
The Commission encourages the resolution of the dispute at the earliest possible opportunity, and the parties to reach their own settlement. If the parties are unable to come to a settlement with the assistance of an Arbitrator of the Commission, then that same Arbitrator will proceed to determine the matter. Legal representation is permitted, but legal practitioners need to take a broad view of their role, which is to actively participate in the proceedings by advising their clients in relation to an early resolution of the dispute, and to generally take a non-adversarial role. The experience of the Commission so far is that most disputes are settled or discontinued before a determination is required.
Membership
The Commission currently consists of four full-time members, appointed by the Minister, namely: President Justice Terry Sheahan, two fulltime Deputy Presidents, Registrar Ms Helen Walker, and approximately seventy Arbitrators, who are contractors appointed by the President.
In response to an increasing number of appeals filed since mid 2004, an amendment was made to the 1998 Act with the insertion of clause 7A in Schedule 5, making provision for the appointment of Acting Deputy Presidents. There are currently about ten Acting Deputy Presidents. These
Acting Deputy President appointments are made on a part time basis, and for twelve-month periods, to ensure that the appeals from arbitral decisions are finalised expeditiously. Given their extensive experience in law, compensation and dispute resolution the appointment of these Acting Deputy Presidents has not only facilitated the speedier determination of appeals but has also enriched the operations of the Commission.
Presidential members sitting alone determine arbitral appeals, but the President alone has the power to determine any ‘novel or complex’ question of law that arises in proceedings. Referral of a question of law requires the leave of the President. All appeals also require leave, but appeals against costs assessments were abolished from 1 November 2006. Appeals from decisions by Presidential Members are available only for error of law, and are heard by the Court of Appeal. The Commission’s Arbitrators, who have been appointed throughout NSW, determine most disputes in the Commission. These Arbitrators have diverse qualifications and expertise. Whilst most are legally qualified with experiences and skills across several fields of law including workers compensation and administrative law, others hold qualifications or accreditation in alternative dispute resolution and have extensive experience working within the New South Wales workers compensation scheme. Six have qualifications and are experienced in workplace injury management and ‘return to work’ planning. The Commission has established a professional training and development program in order to support its Arbitrators to maintain high standards of fair and just dispute resolution.
Objectives
Section 367 of the 1998 Act sets out the Commission’s objectives as follows: (1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b) to reduce administrative costs across the workers compensation system,
(c) to provide a timely service ensuring that workers' entitlements are paid promptly,
(d) to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f) to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission's objectives.
The operation of the Commission must also be considered in light of the overall objectives of the workplace injury management and workers compensation system, which are contained in section 3 of the 1998 Act as follows:
(3) The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) to provide:
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible,
(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) to be fair, affordable, and financially viable,
(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) to deliver the above objectives efficiently and effectively. 2. JURISDICTION OF THE COMMISSION
Any party to a workers compensation dispute may lodge with the Commission an ‘Application to Resolve a Dispute’ in relation to a claim for weekly compensation, medical expenses, damage to property, management of the worker’s injury in the workplace or compensation for the death of a worker. Only the worker may lodge a dispute in relation to permanent impairment, and approximately 70% of new applications filed include a dispute about statutory compensation for permanent impairment. The Commission also deals with applications for ‘Interim Payment Directions’ and the registration of commutation agreements (section 87H of the 1987 Act).
The Commission engages the services of Approved Medical Specialists (‘AMS’) who are involved in medical disputes and the assessment of permanent impairment. An AMS issues a Medical Assessment Certificate (‘MAC’) after a medical assessment which is conclusive as to: the degree of permanent impairment; whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality; the nature and extent of loss of hearing suffered by a worker; whether impairment is permanent, and whether the degree of permanent impairment is fully ascertainable. As to any other matter, a MAC is evidence, but not conclusive evidence. A party may appeal against a MAC, but only against those findings that are conclusive, and only on the grounds of: deterioration of the worker’s condition that results in an increase in the degree of permanent impairment; availability of additional relevant information (being evidence that was not available to the Appellant before the medical assessment appealed against or that could not reasonably have been obtained by the Appellant before that medical assessment); that the assessment was made on the basis of incorrect criteria, or that the MAC contains a demonstrable error.
The Registrar may refer the appeal to a Medical Appeal Panel consisting of two AMSs and one Arbitrator. Fresh evidence is allowed on appeal only if it was not available to the Appellant before the medical assessment under appeal or could not reasonably have been obtained by the Appellant before that medical assessment. The Appeal is by way of review, and the Medical Appeal Panel (or a majority of its members) may confirm the MAC or revoke it and issue another MAC.
The Commission also provides pre-court mediation for workplace injury damages claims, and has established a panel of Mediators for this purpose.
The amending legislation of late 2005 will have a significant impact on the operations of the Commission and the role of the Registrar. One of the most significant changes is that if an
Application to Resolve a Dispute relates only to the degree of permanent impairment the registrar will refer it directly to an Approved Medical Specialist for assessment of the degree of permanent impairment (see Rule 10.2 (3) (b) and Practice Direction 11). All other disputes are referred to an Arbitrator who will assist the parties resolve the matter, or if settlement cannot be achieved the Arbitrator will determine the dispute.
Section 289A, inserted into the 1998 Act, provides for further restrictions on when a dispute can be referred to the Commission, and amendments to section 327(6) provide for the Registrar to refer a medical assessment for further assessment or reconsideration under section 329 as an alternative to an appeal.
The amendment to section 352 of the 1998 Act, inserting section 352(1A), provides that the Registrar must be satisfied that the appeal complies with section 352, the regulations and the rules for making an appeal, before an appeal can proceed.
Section 354 is a new provision giving the Commission jurisdiction to dismiss proceedings if the Commission is satisfied that they have been abandoned or they are vexatious, otherwise misconceived, lacking in substance, or for any other ground specified in the Rules.
The other significant amendment is the widening of the power to reconsider decisions. A new section 378 expressly confers a reconsideration power on the Registrar, the Approved Medical Specialists, and the Appeal Panel.
Amendments to section 352(8) of the 1998 Act now preclude appeals from arbitral awards, determinations, orders, rulings or directions of an interlocutory nature.
Pursuant to section 288A of the 1998 Act, section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with disputes referred to the Commission under Part 4. Pursuant to section 352(7A), section 345 of the Legal Profession Act 2004 also applies in relation to appeals.
3. PRACTICE AND PROCEDURE
The 1998 Act requires Arbitrators to use their best endeavours to bring the parties to a settlement that is acceptable to all of the parties. Only when this cannot be achieved will the Arbitrator proceed to make a determination. The Arbitrator has broad, flexible powers to determine the best way to resolve a dispute. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it sees fit (section 354(2) of the 1998 Act). The Evidence Act 1995 does, however, provide a guide for the Commission as to the types of evidence that are relevant and reliable. The Commission will act equitably and in good conscience. Proceedings are to be conducted with as little technicality and formality as the proper consideration of the matter permits to ensure natural justice (section 354(3) of the 1998 Act). Proceedings need not be conducted by way of a formal conference between the parties and may be determined on the papers provided.
The Workers Compensation Commission Rules 2006 (‘the Rules’) set out the practices and procedures of the Commission, including the manner of lodgment of applications and responses and information exchange between the parties. In addition the Commission has developed a number of forms, President’s Practice Directions, and guidelines to assist parties through its processes, and all these are available at the Commission’s website www.wcc.nsw.gov.au. The WorkCover Medical Assessment Guidelines address issues in relation to medical disputes.
Evidence in Commission Proceedings
One of the distinguishing features of Commission proceedings is the requirement for early information exchange between the parties. The information exchange provisions require each party to the dispute to proceed on the basis of a full and frank exchange of information upon which they intend to rely as early as possible in the proceedings. Failure to comply with the information exchange provisions will prevent documents or information being admitted into proceedings subsequently, except under particular circumstances. The timeframes for lodgment and service, and the penalties for non-compliance, mean that both Applicant and Respondent must be ready to proceed with their respective cases at the time that an application for dispute resolution and any reply are lodged.
The Process
Given the 1998 Act requirement for Arbitrators to use their best endeavours to bring the parties to a settlement, prior to an arbitral determination, the Commission processes are designed to facilitate settlement at any stage, and as early as possible, and Arbitrators will be proactive in conducting all phases of Commission proceedings.
The Commission has established a model for the conciliation/arbitration process to be conducted by Arbitrators, much of which is set out in a Guideline for ‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’, which in turn is supported by Commission documents such as its ‘Access and Equity Service Charter’, and the Registrar’s ‘Guideline for Standards of Conduct during Proceedings’.
The Practice Guideline is based on the following guiding principles:
• The Commission is part of a broader statutory scheme for dealing with workers compensation issues and claims in a way which is timely, fair and affordable (sections 3 & 367 of the 1998 Act).
• All of the information to be used in the dispute resolution process is to be provided and exchanged at the beginning of the process, before any conferences are scheduled (section 290 of the 1998 Act & Rule 10.3). Key information will already be in existence, having been used to support prior resolution attempts between the parties (Parts 2 & 3 of Chapter 7 of the 1998 Act).
• Agreement between the parties is to be encouraged and facilitated at each and every stage of the process (section 355 of the 1998 Act, Rule 15.3(d)).
• The Commission will take all practicable measures to ensure that parties understand the nature of the application, the legal implications of any assertions made in the proceedings, the procedure of the Commission and any decision or ruling made (Rule 15.3(a) and (b)).
• Arbitrators are required to play an inquisitorial role in resolving disputes. Therefore, traditional adversarial processes are absent or heavily modified and those remaining must be exercised in the context of the Commission’s objectives (section 354 of the 1998 Act).
• Parties are entitled to procedural fairness consistent with the inherently inquisitorial character of the process and the objectives of the Commission (sections 367(1)(a) & (2) of the 1998 Act, Rules 15.2 and 15.3(c)). Timeliness and consistency of procedure are strong elements of fairness in this method of dispute resolution.
• The dispute resolution process will be as informal and free of legal technicality as is possible (section 354 of the 1998 Act).
• The focus is at all times on the parties to the dispute. Legal representatives and agents play a role in supporting parties with information and advice, and in assisting the dispute resolution process (sections 367 & 356 of the 1998 Act, ‘Guideline for Standards of Conduct during Proceedings’).
• Evidence used as a basis for any final arbitral decision-making will usually be in documentary form. There will be limited opportunity for oral evidence to be given (Rules 14.2 and 14.3).
• The Act requires that the same Arbitrator who is to determine a dispute will first use his or her best endeavours to bring the parties to a settlement that is acceptable to the parties (section 355 of the 1998 Act).
In summary, the Commission employs a continuous, inquisitorial, informal process whereby parties, at all times, are encouraged to come to an agreed resolution of their dispute. If they cannot reach agreement, the same Arbitrator moves from the conciliation to the arbitration phase of the process. The parties themselves are involved in all stages of the process, and the Commission is proactive in its dealings with unrepresented parties to ensure they fully understand legal and procedural issues and implications. Arbitrators have a statutory obligation and power to attempt to bring the parties to a settlement, and to determine the matter if settlement is not possible. Caucusing in private session is inappropriate during Commission proceedings.
Prior to the allocation of a matter to an Arbitrator, Commission staff will review the file and check the documents. Key dates are notified to the parties at the time of service of an application, and a listing notice setting out the dates, times and places for the telephone conference, conciliation conference and arbitration hearing, will be sent to the parties’ nominated contact point at the same time the file is sent to the Arbitrator. The notice will be accompanied by some general information about the proceedings. The parties, as well as their representatives, are expected to attend an initial telephone conference, which may be the last phase of the proceedings if the parties come to an agreement, or if the Arbitrator is satisfied he/she can come to a decision. If the matter proceeds to the conciliation/arbitration phase, it is intended that the conciliation conference and arbitration hearing will take place on the same day. The Commission Officer responsible for the matter will contact self-represented parties personally prior to the telephone conference, conciliation conference and arbitration hearing. In particular, the self-represented party will be given a further explanation of the process, and advised that they are able to bring an agent or support person to assist them, but that any such person must not be a witness in the case. Determination ‘On the Papers’
Arbitrators and Presidential members are empowered to make decisions ‘on the papers’ where they are satisfied that sufficient information has been supplied to enable them to do so (section 354(6) of the 1998 Act, see also President’s Practice Direction 1). The Commission encourages Arbitrators to actively consider the possibility of whether a determination may be made on the papers. In appropriate cases there are strong advantages for the parties in proceeding in this way. It relieves them of the stress and time associated with personal attendance, is more cost effective in terms of legal, witness and other costs, and is likely to result in a more timely decision. The possibility of a determination on the papers will then be raised with the parties at the telephone conference and their views shall be sought. The Arbitrator/Presidential member will consider any objections raised by the parties and advise them whether the matter is to be determined on the papers or whether the conciliation conference/ arbitration hearing will proceed as scheduled or, in the case of appeals, whether the appeal will be set down for a hearing.
Conciliation Conference/ Arbitration Hearing
Arbitrators will bring to each matter their own skills and experience, and will be proactive in conducting all phases of the proceedings, emphasizing that the parties should take every opportunity to reach their own resolution of the dispute. While the conciliation phase represents the best opportunity to do this, the prospect of settlement will remain under active consideration at all stages of the matter. When a matter is not resolved on the papers or after the telephone conference it will be listed for a conciliation conference. If the matter does not settle by agreement at the conciliation conference it proceeds to an arbitration hearing by the same Arbitrator, on the same day.
In all matters before an Arbitrator regard must be had to Rule 15.2, which provides as follows: “When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute, (c) evidence based on speculation or unsubstantiated assumptions is unacceptable, (d) unqualified opinions are unacceptable.”
In general, cross-examination of witnesses is discouraged. As the proceedings in the Commission are not adversarial, the Arbitrator must be satisfied that cross-examination is necessary to allow him/her to come to a fair and correct decision. The preferred approach is for the Arbitrator to ask the parties and their representatives if there are matters that require clarification. The Arbitrator may then ask the questions, or allow the party or representative to do so.
Wherever possible and having regard to the circumstances of the case, an oral decision and reasons will be given to the parties on the day of the hearing. This may be reduced to writing if requested and must comply with the Rules. A Certificate of Determination, which embodies the parties’ agreement or the Commission’s order, will be issued.
Appeal from a Decision of an Arbitrator
Any appeal against the decision of an Arbitrator on a question of law, fact or discretion must be lodged with the Registrar within 28 days of the date on the Certificate of Determination. Appeals are permitted only where the amount of compensation remaining at issue is at least $5000, and at least 20% of the amount awarded, if an award is made, in the decision appealed against (section 352(2) of the 1998 Act). The recent amendment to section 352(8) prohibits appeals from any award, order, determination, ruling, or directive of an interlocutory nature. A Presidential Member sitting alone frequently deals with appeals on the papers. The appeal is by way of review of the decision, not re-hearing, and fresh evidence is admissible only by leave.
President’s Practice Direction No. 6 provides that, in general, the Commission will allow new evidence to be given only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator, and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case. Most applications for leave to appeal a decision of an Arbitrator and, if necessary, leave to give new evidence are determined on the papers. Where leave to appeal is granted, if necessary, the Presidential Member will give directions as to the future conduct of the appeal, including whether the matter will proceed on the papers or whether further submissions, an oral hearing, or both, are required.
On appeal the Presidential Member may confirm the decision, or revoke it and make a new decision in its place or revoke it and remit the matter to the Arbitrator, or to a new Arbitrator, for determination in accordance with any decision or direction of the Commission.
If an appeal by an injured worker is “unsuccessful”, the Commission is precluded from making an order for payment of the Appellant’s costs of the appeal. An appeal is considered to be “unsuccessful” unless the worker improves his/her position by at least $5000 and at least 20% of the amount of compensation at issue on appeal.
Referral of a Question of Law to the President
A question of law arising in proceedings before an Arbitrator may, with leave of the President, be referred by the Arbitrator for the opinion of the President (section 351(1) of the 1998 Act). This may be at the request of a party or at the Arbitrator’s own motion. It is not a vehicle for the litigation of common legal or factual issues that may arise in any compensation dispute, and can be settled either by negotiation/compromise, or by, or before the Arbitrator. The President is not to grant leave for the referral unless the question involves a “novel or complex” question of law. An Arbitrator may proceed to make an award in the matter regardless of the referral of the question of law unless the issue referred is one of jurisdiction.
The President has issued Practice Direction 5 with respect to referrals of questions of law to the President. The WorkCover Authority has the right to be heard in any proceedings before the Commission under section 106 of the 1998 Act, and the Direction provides that where an application is made for leave to refer a question of law to the President, a copy of the application and any responses, with all relevant submissions and supporting documents, must be served on the WorkCover Authority. Unless the President otherwise directs, it is expected that the decision of the President to grant or refuse leave to refer a question of law will be determined on the papers. The Practice Direction also provides some of the factors relevant to whether leave will be granted.
The President’s opinion on the question of law will be remitted to the Arbitrator who referred the question. Where an award has not already been made in the matter in which the question of law arose, the proceedings will continue. If the matter proceeds to a determination by the Arbitrator, an award must be made that is not inconsistent with the opinion of the President. Where an award has already been made in the matter in which the question of law arose, the President’s opinion will be referred back to the Arbitrator. This will enable the Arbitrator, if necessary, to vary the award so that it is consistent with the opinion of the President. It is for the Commission constituted by the Arbitrator to finally determine the matter, to decide whether, having regard to all of the circumstances of the case, the parties should be given the opportunity to be further heard on the terms of the variation of the award.
Publication of Commission decisions
You will find most formal decisions given by Presidential Members from 2002 to date published on Australasian Legal Information Institute (AustLii). Some decisions of Arbitrators, determinations of costs and medical panel decisions are published on the Commission’s website at
www.wcc.nsw.gov.au under “Decisions.”
Costs
All legal and related costs recoverable in relation to a claim for compensation made under the 1987 and 1998 Acts are regulated. The costs structure of the Scheme was essentially
events-based. Costs are set by regulation, not by the Commission. The Workers Compensation Amendment (Costs) Regulation 2006 establishes a new scheme (set out in substituted Schedule 6) now based on a “lump sum” costs model rather than an “activity based” costs model. The object of the new regulation is to provide that no amount is recoverable for costs not referred to in the regulation, and costs are not recoverable unless the matter has been resolved as set out in the substituted Schedule 6. The Registrar is authorized to make costs orders in relation to interim payment directions, disputes about past weekly payments of compensation and disputes about non compliance with Chapter 3 of the 1998 Act (Workplace Injury Management). From 1 November 2006 there is no avenue of appeal from a decision of the Registrar in respect of an assessment of costs under Schedule 6.
4. MEDIATION OF WORKPLACE INJURY DAMAGES CLAIMS
A new statutory regime applies to the assessment of work injury damages claims lodged after 27 November 2001, irrespective of the date of injury. Work injury damages may be claimed only in relation to injuries that result in at least 15% permanent impairment of an injured worker, or the death of a worker. The Commission has jurisdiction in relation to pre-filing mediation processes associated with work injury damages claims – all claims must come to the Commission for mediation before they are filed at Court. Mediators have been appointed by the President and are under the general control and direction of the Registrar. The final offers of settlement during the mediation are treated as offers of compromise once a determination is made by the District Court and will affect what costs are recoverable by the parties.
5. ACCESS AND EQUITY ISSUES
The Commission is committed to providing a transparent and independent forum for the fair, timely and cost effective resolution of workers compensation disputes in New South Wales.
Access and Equity Service Charter
The Commission launched its Access and Equity Service Charter on 17 December 2002. The Charter clearly sets out the way in which the Commission will meet its objectives of providing an accessible and fair workers compensation dispute resolution service to all members of the community and was endorsed by the Community Relations Commission. The Charter identifies a number of standards and strategies against which those objectives are to be measured, and covers not only issues of access and issues of equity, but also effective key relationships, complaints and appeals. A summary of the Charter is available from the Commission in brochure form in ten community languages.
Representation
A person who is a party in proceedings before the Commission is entitled to representation by a legal practitioner or an agent (section 356 of the 1998 Act). ‘Agent’ is defined to include a representative of a union or the employee of a licensed insurer. Legal costs are governed by the Regulation and are geared toward encouraging early settlement of disputes.
The Registrar has issued a Guideline entitled ‘Standards of Conduct During Proceedings’ in order to outline the Commission’s expectations in respect of the conduct of representatives or agents participating in resolving disputes before the Commission. The Guideline recognises that persons representing either a worker or employer have certain obligations and responsibilities that must be met and was developed with due regard to the Commission’s statutory objectives and section 356 of the 1998 Act.
Self Represented Persons
The Commission recognizes that it has a responsibility to persons who are not represented, and aims to be accessible and economical for all parties. The experience of the Commission so far is that parties are legally represented in the overwhelming majority of cases. However, the Commission has sought to address some of the issues involved in dealing with self-represented Applicants by developing its preliminary processes to address many of the difficulties facing them.
The WorkCover Claims Assistance Service (phone 13 10 50) also provides a hotline with on-line advice and referrals to help injured workers and employers to work through the system.
Special Needs
Applicants before the Commission will be as diverse as is the nature of the NSW workforce. The ability of the parties to collect and present evidence will differ for a myriad of reasons, including limited financial resources, levels of literacy, English language difficulties, cultural attitudes to the legal process and general lack of understanding of what information may be relevant. Applicants with poor education, either in Australia or elsewhere, are doubly disadvantaged in dealing with the complexity and sophistication of the review process. Arbitrators are also trained to be alert to the fact that cultural factors are all pervasive and not limited to language.
The Commission will provide an interpreter to redress the disadvantage of the non-English speaker. Qualified interpreters are provided free of charge for Commission proceedings. Friends or family members of a party cannot act as interpreters in Commission proceedings.
The Commission will make every effort to accommodate the needs of persons with disabilities and has the following objectives in relation to services for people with disabilities:
• to ensure that people with disabilities do not experience discrimination as users of Commission services, and have their particular needs for services and support acknowledged and met; and
• to effectively communicate information about all the Commission’s services to people with disabilities, enabling them to communicate effectively before the Commission, through the use of appropriate communications practice, media and technologies.
Information Technology
The Commission has the facility to conduct hearings by teleconference and videoconference where necessary. In some cases this may be the most efficient means to take oral evidence from medical experts or persons who are not able to attend the hearing in person.
Rural and Regional Sittings
The Commission has appointed Arbitrators and Approved Medical Specialists throughout New South Wales, and inter-state. The Commission will arrange conciliation conferences and arbitration hearings in rural and regional areas to accommodate those Applicants who do not reside in Sydney. Members and staff of the Commission participate in education and information seminars throughout regional and rural NSW to explain and discuss the Commission’s role and processes.
6. RESULTS & ACTIVITIES TO DATE Annual Review
The Commission has published electronically the Annual Review for 2005.
There were 12,761 applications to resolve a dispute registered in 2005 and 14,548 applications were finalised in the year, with 65% of finalisations being by way of settlement or discontinuance.
Arbitral Appeals
In 2005, 331 appeals against arbitrator’s determinations were lodged in the Commission and 224 appeals were finalised.
Since the commencement of the Commission, the Court of Appeal has determined ten Presidential decisions (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited t/as Ascot Freightlines & Anor [2003] 57 NSWLR 282, McMahon v Lagana & Anor [2004] NSWCA 164, Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344, Wyong Shire Council v Paterson [2005] NSWCA 74, Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34, Department of Education and Training v Sinclair [2005] NSWCA 465 (‘Sinclair’), Coles Myer Ltd v Rudzinski [2006] NSWCA 161, WorkCover Authority of NSW v Mackley [2006] NSWCA 204, Raniere Nominees v Daley and anor [2006] NSWCA 235, State Transit Authority of NSW v Chelmer [2006] NSWCA 249). The appeal was dismissed in all but Sinclair and Chemler, which were both remitted to the Commission. Leave to appeal was refused in the cost appeal, Berger v Moree Plains Shire Council (NSWCA 40062-06, 28 September 2006).
There have been a number of judicial review determinations of Medical Appeal Panel decisions in the Administrative Law Division of the Supreme Court of NSW. Campbelltown City Council v Vegan [2006] NSWCA 284 is the only such matter determined on appeal by the Court of Appeal. In this recent decision the Court, in upholding the appeal, confirmed that Medical Appeal Panels, like Approved Medical Specialists have a duty to give reasons for their decisions.
Mediation of Workplace Injury Damages Claims
The Commission received 50 applications for mediation in 2004 and finalised 35 of these applications. Of the 21 claims that proceeded to mediation, 13 resolved. In 2005 the Commission received 244 applications of which 212 were finalised in the year. Of the 165 claims that proceeded to mediation 112 settled at mediation.
Medical Appeals
Of the 5,160 Medical Assessment Certificates issued in 2005, 1,222 appeals against the Certificates were lodged. There were 1,113 medical appeals determined in 2005. Of these, 243 resulted in the original Medical Assessment Certificate being revoked or replaced. This represents approximately 22% of all resolved appeals but only about 5% of all Medical Assessment Certificates issued.
In late 2003, the Commission engaged consultants Urbis JHD Pty Ltd to undertake a two year independent customer research project aimed at assessing its performance from the perspective of employers, injured workers and insurers who have been parties in Commission dispute resolution proceedings. The research was conducted by confidential telephone surveys and participants were asked a range of questions regarding the quality and usefulness of information and correspondence they received, and their experience of the teleconference, conciliation and arbitration processes. The final report was issued in March 2005. The survey results, as detailed in the final report indicate that in 2003, 76% of workers, 53% of employers, 80% of insurers and 88% of self-insurers surveyed rated the service provided by the Commission as adequate, good or very good. In 2004, 71% of workers, 65% of employers, 88% of insurers and 94% of self-insurers surveyed indicated that the service provided by the Commission was adequate, good or very good. Some concerns were highlighted in the survey however, most notably the low rates of workers and employers actually participating in their own teleconferences, in terms of asking questions or making comments. Of those surveyed, 47% of workers and 54% of employer stated that they did not participate. When asked why they did not take part, 20% of workers cited being told not to by either their legal representatives or some other person, 7% reported feeling nervous, while 5% reported being unable to hear the proceedings sufficiently. Of the employers surveyed, 14% also noted having been told not to participate. These results are obviously of some concern as they indicate the areas that need improvement so as to ensure the Commission continues to deliver its service in a manner that meets its objectives.
Public Education and Stakeholder Communications
In 2003 over 400 people attended 18 free information seminars on the Commission’s role and processes across New South Wales and the President and Deputy Presidents addressed over 30 industry conferences and seminars.
Members of the Commission including the President and Deputy Presidents, presented papers at, and addressed over 20 conferences and seminars in both 2004 and 2005. The Commission is committed to an ongoing active role in industry and professional education and development and is currently working with the WorkCover Authority of New South Wales, to develop an insurer education program. This is an important project for 2006, particularly given the appointment of new scheme agents in late 2005. The Commission is also working with the Regional Presidents of the Law Society to develop a further education programme for outlying solicitors and their staff. In response to the introduction of the November 2006 changes, the Commission has again initiated free half-day seminars in Sydney and regional centres. These seminars are focusing on the changes to practice and procedure in the Commission as a result of the recent legislative, regulation and rule changes.
On 12 June 2005 the Minister, Mr Della Bosca launched the much anticipated DVD/video, which was commissioned and created to provide information to help injured workers better understand the dispute resolution process. A copy of the DVD or video, which has been published in 12 languages, is available from the Commission free of charge.
The Commission has also developed the E-Bulletin, an electronic bulletin published regularly throughout each year to inform stakeholders of changes and developments in our operations and procedures. The E-Bulletin can be subscribed to by email and is available on the Internet on the Commission’s home page. This year 827 people/organizations subscribed.
The Commission has undertaken an extensive revision of its IT services and infrastructure throughout 2005 and 2006. A new internetsite (www.wcc.nsw.gov.au) was launched in December 2005 after comprehensive consultation with stakeholders. The Commission is confident that this site will improve ease of use and assist all the major stakeholder groups, be they individual workers, employers, insurers, self-insurers or the legal profession, in accessing relevant information and downloading documentation including forms, policies, Practice Directions and both primary and appellate Commission decisions.
In addition, in late 2005/2006 the Commission developed a new case management system. The functionality specifications are currently being finalized and the Commission is working towards an implementation date for the new system in 2007.
Finally, 2005 saw the establishment of a User Group for members of the profession. Currently there are five professional members: four solicitors and one member of the Bar. These bimonthly meetings have been extremely useful to the Commission because of the participants’ co-operation and input. They have made valuable suggestions for practical changes to the Commission’s processes, and their continuing involvement in 2006 working with both the President and the Registrar, will be vital as the Commission develops the new case management system and adapts procedures and processes to implement the new legislative changes.
7. CONCLUSIONS
Reforms to the workers compensation system have arisen from a need to change a system of litigation in the statutory workers compensation scheme that resulted in New South Wales having the highest rate of disputed claims in Australia. There were 25,590 cases filed in the Compensation Court in the calendar year 2001. Only 10% of those disputed major claims were settled through conciliation. Of those disputes lodged with the Court, less than 10% proceeded to a judgment, with over 90% of disputes being settled between the parties on the ‘steps of the Court’. The effect of this process for injured workers has been to prolong their injury status and delay the commencement of effective injury management.
The establishment of the Workers Compensation Commission of New South Wales on 1 January 2002 heralded a new regime for the resolution of disputes under the NSW workers compensation legislation.
It provides a fair and quick outcome for injured workers in dispute about their entitlements to compensation under the statutory benefits scheme. The Commission provides an accessible, approachable and professional dispute resolution service that actively engages the parties to resolve their dispute. At the same time it provides certainty and timeliness where this otherwise cannot be achieved.
The experience of the Commission to date has been that most disputes were settled or discontinued before a determination was required. The work of the Commission is to be closely monitored and evaluated and, if successful, as seems likely from its first four years of operation, its processes could become a model for dispute management across a broad range of civil law matters.
