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Workers Compensation in New South Wales Amended Dispute and Claims Management Procedures Twelve Months On - A Practical Perspective A PAPER BY MICHELLE RIORDAN NOVEMBER 2007


Workers Compensation in New South Wales by Michelle Riordan

Workers Compensation in New South Wales AMENDED DISPUTE AND CLAIMS MANAGEMENT PROCEDURES TWELVE MONTHS ON - A PRACTICAL PERSPECTIVE

Summary The attached paper was prepared for the CLE Centre and was presented at its Civil Litigation Day Seminar on 26 October 2007. The paper reviews the amendments made to the NSW Workers Compensation Scheme on 1 November 2006 and discusses practical issues that have arisen as a result of those amendments.

Who Does This Impact? Workers Compensation Claims Managers & Case Managers, Self-Insurers and Employers of workers in NSW.

What Action Should Be Taken? Possible review of claims management procedures to overcome issues that have arisen since 1 November 2006.

Contents: 2 3 5 6 6 8 9 14 15 15

Foreword Independent Medical Examinations and Reports Obligation to Exchange Information Disputing Claims FORMAL REQUIREMENTS OF A SECTION 74 NOTICE

Restrictions on the Determination of Disputes Making a Claim for Lump Sum Compensation Referrals to Approved Medical Specialists RESTRICTION ON THE ADMISSION OF MEDICAL EVIDENCE RESTRICTION ON THE NUMBER OF MEDICAL REPORTS THAT CAN BE ADMITTED IN PROCEEDINGS RESTRICTION ON DISCLOSURE OF FORENSIC MEDICAL REPORTS TO APPROVED MEDICAL SPECIALISTS RESTRICTION ON RECOVERY OF COST OF MEDICAL REPORTS

16 16 17 17 17 18 18 19

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Review and Appeals APPEALS AGAINST DECISIONS OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR APPEALS AGAINST DECISIONS OF APPROVED MEDICAL SPECIALISTS

Other Amendments EXPEDITED ASSESSMENTS

Proceedings Commenced by way of an ARD

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Foreword The NSW Workers Compensation Scheme was extensively amended from 1 November 2006, when the following instruments took effect: •

Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006;

Workers Compensation Commission Rules 2006;

WorkCover Guidelines for Claiming Compensation Benefits;

WorkCover Guides for the Evaluation of Permanent Impairment (2nd Edition);

WorkCover Medical Assessment Guidelines; and

Workers Compensation Amendment (Costs) Regulation 2006;

The amendments effected by these instruments included changes to: •

how a claim for lump sum compensation is made;

the Insurer/Scheme Agent’s claims management procedures;

the Workers Compensation Commission’s dispute resolution practice and procedure; and

costs that parties to a dispute are entitled to recover.

This paper is not a comprehensive discussion of all of the amendments contained in these instruments. Rather, it is intended as a practical review of the significant amendments that affect the day to day management of claims and disputes under the New South Wales WorkCover Scheme and practice in the Workers Compensation Commission.

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Independent Medical Examinations and Reports A worker who has given notice of an injury or is receiving weekly compensation can be required to submit to an independent medical examination provided and paid for by the Insurer: Section 119(1) and (2) WIMA. If the worker refuses to submit to the examination or otherwise obstructs the examination, his/her rights to recover compensation in relation to that injury or his/her right to weekly compensation is suspended until the examination takes place: Section 119(3). However, a worker cannot be required to submit for examination other than in accordance with the WorkCover Guidelines: Section 119(4). The WorkCover Guidelines on Independent Medical Examinations and Reports dated 25 October 2006 provide guidance for all parties involved in the examination process, including referrers (Insurers, Employers and Solicitors of the parties), examining doctors and injured workers. They also impose mandatory obligations on Insurers/Employers when referring a worker for a medical examination under Section 119. The mandatory obligations (found in pages 5 to 12 of the Guidelines) are discussed below: •

Referral for an independent medical examination is only appropriate when information from the treating doctor(s) is inadequate, unavailable or inconsistent and where the insurer has not been able to resolve the problem directly with the doctor(s); •

I.e. where a treating doctor issues incomplete or defective WorkCover Certificates, but fails to respond to an insurer’s requests for further information and\or a medical report, it can arrange an independent medical examination.

Referrals must be arranged at reasonable times and dates and with adequate notice to the worker.

Referral is only to be made where the information required relates to one of the specified reasons for referral and that information cannot be obtained from the treating doctors. •

The reasons for referral are when the required information relates to: -

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diagnosis of an injury and contribution of work incidents, duties and/or practices to the injury; diagnosis of the worker’s continuing condition and whether it still results from the injury; recommendations and/or need for treatment; fitness for pre-injury duties and hours and the likelihood of and timeframe for recovery; fitness for other duties/jobs; what past or continuing incapacity results from the injury; physical capabilities and activities that must be avoided; and an assessment of permanent impairment, including any proportion to be deducted due to a pre-existing injury, abnormality or condition.

The Independent Medical Examiner must have qualifications relevant to the treatment of the worker’s injury. If the worker has not been treated by a specialist, the IME must have qualifications and expertise in the treatment of the worker’s injury.

The Insurer must meet the reasonable costs incurred by the worker, including wages, travel, accommodation and an escort (where there is medical evidence that a worker cannot travel alone). Pre-payment of travel expenses may be required.

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A worker who is receiving weekly compensation can be required to submit to a subsequent medical examination in the following circumstances; •

The information from the treating doctors remains inadequate, unavailable or inconsistent.

The insurer cannot resolve the issues related to the problem directly with the treating doctor(s).

The subsequent independent medical examination is with a specialist medical practitioner of the same specialty as has treated the worker.

One or more of the following applies; • • • • • • •

Subsequent medical examinations must be with the same doctor unless the doctor: • • •

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the insurer has evidence that the worker’s medical condition has changed; the insurer has evidence of a change in the worker’s health not resulting from the injury that will affect his/her participation in the labour market; the insurer has evidence of a material change in the manner or type of treatment; the worker makes a claim for compensation under Section 66 or for work injury damages; the worker requests a review of a dispute notice issued under section 54 WCA or Section 74 WIMA and includes additional medical information that the Insurer is asked to consider; it has been at least 6 months since the last independent medical examination; or the last independent medical examination was unable to be completed.

has ceased to practice in the specialty concerned; no longer practices in a location convenient to the worker; or both parties agree that a different doctor is required.

If a worker considers the requirement to attend an IME is unreasonable, he/she must advise the insurer of the reasons for the objection. The insurer must take account of the objection and advise the worker of its decision after it has been considered.

The insurer cannot suspend benefits before it gives the worker adequate written notice of its decision after it has considered the objection and any decision to suspend weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. The worker must be advised in writing of the reasons for the suspension and that he/she can contact the Claims Assistance Service or their union for assistance.

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Obligation to Exchange Information The Insurer’s obligation to provide a worker with copies of medical and investigation reports arises when: •

A decision is made to dispute the claim (by issuing a Section 74 Notice).

A decision is made to discontinue or reduce weekly payments (by issuing a Section 54 Notice).

A review is conducted under Section 287A WIMA and the original decision is confirmed.

Note that the previous provision requiring insurers to provide medical reports within 10 days of a written request has been repealed. Insurers can ignore such requests. Please ensure that precedent letters are updated to reflect the amendments. The medical and investigation reports that must be attached to the Section 74, 54 or 287A review notice include; •

medical reports including IME reports;

medical certificates;

clinical notes;

investigation reports;

occupational rehabilitation reports;

health service providers’ reports;

Section 40A assessment reports;

other reports relevant to the decision; and

wage information required under Section 43(2) WCA.

However, if providing a report to a worker poses a serious threat to the life or health of the worker or some other person (e.g. a witness), the Insurer can give a copy to; •

the worker’s doctor;

the worker’s solicitor; or

apply to WorkCover NSW for direction as to some other appropriate person to whom the report can be provided.

Failure to provide a report means that the report: •

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cannot be used to dispute a claim;

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is not admissible in proceedings before an Arbitrator; and

cannot be referred to an AMS or a Medical Appeal Panel.

Section 43 WCA requires an employer to provide to the worker: •

Details of the relevant award and classification to enable the worker to determine their current weekly wage rate.

Details of the worker’s average weekly earnings.

Details of the earnings of two comparable employees.

The information must be provided in writing within 28 days after the worker requests it and the employer is guilty of offence if it does not provide wage details. However, it is only required to provide this information if it has not been previously provided to the worker.

Disputing Claims If an Insurer disputes liability in relation to a claim, it must give notice of the dispute to the worker under Section 74 of the WIMA. A Section 74 Notice is not required if a letter under Section 54 (required before payments of weekly compensation are terminated or reduced), which includes the information required by Section 74, has already been issued to the worker. Before issuing a Section 74 Notice, the Insurer must conduct an internal review of its decision to decline liability in relation to the claim or an aspect of it: Section 74(5). The internal review must consider all of the evidence relevant to the claim or the aspect of the claim that the decision relates to. It must be conducted by someone who has the required experience (i.e. a technical adviser or senior claims supervisor) and not the person who made the original decision.

FORMAL REQUIREMENTS OF A SECTION 74 NOTICE After the internal review, if the Insurer decides to dispute the claim, it must give the worker a Section 74 Notice that is written in plain language and includes;

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a Statement of the matters in dispute (i.e. the claim or aspect of the claim that is disputed);

the Reasons why the insurer disputes liability (i.e. the legislative provision(s) relied upon);

the insurer and claimant issues relevant to the matters in dispute (i.e. a plain English summary of the evidence relied upon and details of how it supports the decision);

a statement that matters that can be referred to Commission are limited to matters identified in notice, or in a dispute review notice;

a statement identifying all reports and documents relevant to the claim or aspect of the claim that the decision relates to, even if they do not support the decision. The list must include the author’s name, qualifications and the date of the report;

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a statement identifying the reports and documents submitted by the worker in making the claim.;

note that the worker will be limited to this information in WCC proceedings regarding the dispute - unless he/she was not legally represented at that time;

a statement identifying that all reports and documents that are in the insurer’s possession that are relevant to the decision are attached to the dispute notice. However, there is no need to attach reports that have previously been served. In most cases, the insurer is limited to these reports in WCC proceedings regarding the dispute;

a statement that the worker can request a review (optional) and procedure for requesting review;

a statement advising the worker that they can contact CAS, union, lawyer or refer to WCC; and

a Section 54 notice that gives the relevant notice period.

Failure to comply with Section s74 is an offence punishable by a maximum penalty of 20 units (i.e. $2,200). A worker can ask an Insurer to review a claim at any time after it has disputed the claim but before the dispute is referred to the Registrar for determination by the Commission: (Section 287A WIMA). The Insurer must review the claim within 14 days of receiving the request for review. The Review must by conducted by someone other than the initial decision maker who has the requisite expertise. On review, the Insurer can either accept the claim or decide to maintain the dispute in relation to the claim or any aspect of it. If it does so, it must issue a notice of the dispute to the worker that contains the same information as a Section 74 Notice. As the Commission is restricted to considering only those issues raised in correspondence prior to the commencement of proceedings, it is essential that the original dispute notice (and any notice issued in response to a request for review) contain very specific and detailed information regarding the reasons and grounds for the dispute and that it responds to all allegations and claims contained in the notice of claim. If an insurer fails to identify relevant issues or fails to respond to all allegations or claims made, it may be prevented from raising those issues or disputing those allegations or claims in any subsequent proceedings in the Commission. However, this assumes that the notice of claim sent to the insurer contains details of all injuries alleged by the worker, all claims for compensation made with respect to those injuries and all relevant documentation in support of those claims. In my experience, it not unusual to find allegations of injury in an ARD that were either not the subject of a claim for compensation made by the worker or contained in the Notice of Claim. I suggest that for reasons of procedural fairness and natural justice, an Insurer would not be precluded from disputing those allegations of injury and\or claims for compensation of which it was not given prior notice by the worker. I note that there is no legislative bar to the Insurer reviewing the claim after Commission proceedings are commenced. In these circumstances, I suggest that the further allegations of injury and/or claims can be validly disputed by the insurer either by way of a further Dispute Notice or in its Reply.

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Restrictions on the Determination of Disputes A worker cannot refer a matter to the Commission unless there is evidence of: •

a claim, and

a dispute, or

a failure by the Insurer to determine the claim within the appropriate time limits (Section 289 WIMA).

The Registrar can refuse to accept an ARD if the documents do not confirm that a claim was made, and that a dispute exists or that the Insurer has failed to determine liability within the time limits. The insurer must respond to a claim within the following timeframes: •

Weekly benefits claims - The later of either 21 days or the end of the Provisional Liability period.

Medical expenses claims – 21 days.

Lump sum benefits claims – 2 months.

By accepting the claim and making an offer of settlement or disputing the claim by giving a dispute notice under Section 74. The Registrar is advised that liability is disputed by the dispute notice attached to the ARD. The Registrar is advised that liability has not been determined by the CAS reference number and letter issued by CAS that is attached to the ARD. An Insurer can only dispute matters previously notified as disputed in Commission proceedings. A matter has been previously notified as disputed if; •

it was notified in a Section 74 Notice, a Section 54 Notice or a Section 287A Dispute Review Notice; or

in relation to claims for lump sum compensation, the matter has been raised in writing between the parties before the dispute is referred to the Commission.

The Commission can only consider matters that were not previously notified if it is in the interests of justice to do so.

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Making a Claim for Lump Sum Compensation Section 260(1) of the Workplace Injury Management and Workers Compensation Act 1998 (WIMA) provides: ‘‘A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines’. On 1 November 2006, the 2001 WorkCover Guidelines were replaced by the ‘WorkCover Guidelines for Claiming Compensation Benefits’ (The Guidelines). The Guidelines apply to injuries notified from and after 1 January 2002 and claims made from and after 1 January 2002 – even if the injury was received before 1 January 2002. However, they do not apply to; •

the workers compensation company within the meaning of the Coal Industry Act 2001;

claims made or determined under the Uninsured Liability and Indemnity Scheme established under Part 4 of the 1987 Act (Section 141); or

claims arising from Dust Diseases which are referable to the NSW Dust Disease Board or the NSW Dust Disease Tribunal.

Part 5 of The Guidelines provides for “Making and Handling a Claim for Lump Sum Compensation (Permanent Impairment and Pain and Suffering)”. The preamble to Part 5 states that to claim lump sum compensation, a worker must have sustained an injury (as defined in Section 4 WCA), that resulted in permanent impairment (as referred to in Section 66 WCA), and made a claim in relation to that injury. Further, if the insurer is satisfied that maximum medical improvement has been reached, it may initiate an assessment of permanent impairment that may lead to a subsequent payment under a complying agreement.

The Relevant provisions in Part 5 are as follows: •

Clause 1: This states that the ‘Minimum Information Required to Make a Claim for Lump Sum Compensation’’ is a fully completed Permanent Impairment Claim Form, and it requires a worker to provide all reports and documents relied upon to either the employer or the Insurer as soon as possible after the information is received.

Clause 2: This sets out the particulars that must be provided to the employer or Insurer.

Clause 2.1 (which applies to injury prior to 1 January 2002) and Clause 2.8 (which applies to injury after 1 January 2002), provide that: • •

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The claim must identify the injury received ‘‘as identified in claim for workers compensation’’; and If no claim for compensation has been made, it is necessary to separately make such a claim.

Clause 5: This provides that if a claim for lump sum compensation is deficient, the insurer must determine that the claim does not contain the relevant particulars within these time limits. It must then advise the worker in writing ‘how to correct the deficiency’. The insurer then has 2 months from when the deficiency is rectified to determine the claim.

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These provisions are significant as Employers and Insurers frequently receive Notice of Claims for lump sum compensation with respect to alleged injuries that have not previously been the subject of claims for compensation. It must also be noted that Section 281 WIMA imposes specific time limits for an Insurer to determine a claim for lump sum compensation and requires that the insurer must accept or dispute liability; •

within 1 month after the degree of permanent impairment becomes fully ascertainable (as agreed by the parties or as determined by an Approved Medical Specialist);

within 2 months after the claimant has provided to the insurer all relevant particulars about the claim; whichever is the later.

Case Study: •

On 1 January 2001 worker suffers a back injury as a result of a frank incident at work. The injury is reported and there is no dispute that it is compensable.

The worker completes a Claim Form alleging the back injury as a result of that incident, but does not allege any other injuries.

The Insurer accepts liability and makes voluntary payments of weekly benefits for periods of incapacity and reasonable and necessary medical expenses with respect to the injury caused by the frank incident.

The worker subsequently instructs solicitors and they send a Notice of Claim to the employer and Insurer that not only alleges the back injury as a result of the frank incident on 1 January 2001, but also alleges injuries to the worker’s neck, both legs and sexual organs as a result of the nature and conditions of employment “from 1 January 2001 to date”. They advise that the worker claims lump sum compensation under both the Table of Maims (for the 2001 injury) and for Whole Person Impairment (for impairment due to injury alleged after 1 January 2002). They also serve a medical report from a qualified specialist that contains impairment assessments.

However, the worker’s solicitors did not serve a Permanent Impairment Claim Form completed by the worker on the insurer.

Within the required time, the Insurer made an offer of settlement in relation to the claim arising from the frank injury, but advised the worker’s solicitors that it had no record of a claim for compensation for the other alleged injuries and that the minimum information and particulars of those claims has not yet been provided. It stated that this deficiency could be corrected by the worker submitting a fully completed Permanent Impairment Claim Form.

The worker’s solicitors did not respond to the Insurer’s letter. They subsequently referred a dispute to the Commission by filing an ARD.

Issues to be considered: In this example, the dispute in relation to impairment resulting from the frank incident has been properly referred to the Commission. However, as Part 5 Clause 1 of the Guidelines has not been satisfied with respect to the other alleged injuries and claims for compensation, have those claims been duly made?

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If not, can the worker’s solicitors properly refer a dispute regarding those alleged injuries and claims to the Commission and does the Commission lack jurisdiction to determine those claims?

Discussion: Prior to 13 September 2007, the Commission determined that it lacked jurisdiction to determine claims for compensation that had not been made as required by the WorkCover Guidelines (see: Kurrajong Holdings t/as The Gardeners Inn v Carrette) (Kurrajong). However, on 13 September 2007 the Court of Appeal published its decision in Barrow International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (Barrow). Barrow Barrow). In Barrow, the Court of Appeal dismissed the Employer’s Appeal against the decision of Acting Deputy President Moore, which upheld an Arbitrator’s decision in relation to all issues except that of dependency. The Acting Deputy President set aside the award under Section 40 WCA and remitted the dependency issue to the Arbitrator. The Employer appealed against the Arbitrator’s decision on 12 grounds, including (Ground 1) - ‘‘The Arbitrator had no jurisdiction to determine the matter where no notification of injury or claim for compensation had been made against Fletcher…’ The Acting Deputy President noted that the Arbitrator determined: ‘‘An Injury Report and Claim Form was submitted to the Respondent on 4 December 2000 in relation to the injury of [sic] the right shoulder. This one page form includes language which clearly identifies it as a Claim Form. In the circumstances, I conclude that the Applicant has properly made out his claim against the Respondent in respect of the right shoulder.’

On Appeal, the Acting Deputy President noted a document in evidence was headed - “Injury Report and Incident Investigation”. This referred to an incident on 4 December 2000, where the worker had injured his right shoulder at work. She noted that whilst it was not signed by the worker it appeared to have been signed by a representative of the Employer. She also noted that the Employer’s First Aid Records indicated a complaint of right shoulder pain on 15 October 2000, which was to be assessed by a doctor on 17 October 2000. The Acting Deputy President also stated: ‘Of more significance however is the document described by Fletcher as a “form letter” from Fletcher to Dr Riskallah dated 7 June 2002. That letter is in the form of a ‘referral”. It is for ‘surgical procedure” or “surgical review”. It nominates the employee as “Tom Barrow”, the injury as “right shoulder”, the date of injury as “5 October 2000” and of particular relevance, the claim number as “2000CLM0151”. It is noted that the appointment is arranged for 8 June 2002.’

The Acting Deputy President determined that the Arbitrator was entitled to find that an Injury Report and Claim Form was submitted to the Employer on 4 December 2000 and she determined that the Employer’s claim that: ‘No notification of injury was given is clearly without foundation for the reasons stated above’’. She determined that while the document was not described as a ‘Claim Form’, ‘it included language which clearly identifies it as a Claim Form’. Therefore, it was open to the Arbitrator to make that determination based on the totality of the evidence before him. It is not necessary to discuss the remaining grounds of appeal in the current context.

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The Employer appealed to the Court of Appeal on multiple grounds, including: “That the Arbitrator did not have jurisdiction to entertain the worker’s Application”. In his Judgment, Mason P noted: ‘The Employer contended, as it had before the Presidential Member, that the Arbitrator lacked “jurisdiction” to determine the dispute in the absence of evidence that the worker had given prior notice of injury or made a relevant claim for compensation… Legally, the jurisdictional point was said to arise from s260 of the WIM Act and to be supported by the reasoning of Presidential members of the Commission in the Kurrajong Holdings t/as the Gardeners Inn v Carrette [2004] NSWWCCPD 8 and Cottons Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205.’

His Honour also stated: ‘The Acting Deputy President who determined the appeal by way of review, addressed the “jurisdictional” issue in paras 25-39 of her Determination (Red 531-2). She held that the Arbitrator was entitled to make the findings in para 20 of his Reasons. The employer’s claim that “no notification of injury” was given was found to be clearly without foundation. These are factual findings that are explained in detail in paras 29-34 and 36-38 of the Reasons… Nothing has been put before this Court to suggest that these findings were not open, let alone establish that some “point of law” arises on this matter.’

His Honour held that as the Employer’s jurisdictional argument failed on its facts, it was ‘unnecessary to consider whether non-compliance with any or all of the Guidelines’ stipulations about the information to be included in a notification of injury or a claim are truly jurisdictional’. However, he then commented that ‘some analysis is apposite by way of guidance to the Commission.’’ Therefore, his comments (discussed below) are Obiter: •

If non-compliance with the Guidelines created a jurisdictional impediment, then the entire proceedings before the Commission would be a nullity, even if the dispute were resolved or proceeded to a Determination. He felt that this was ‘most unlikely to have been the statutory intent’.

The decisions in Kurrajong and Cottons Glass contain little analysis on the topic and they point to nothing beyond ss260 and 289 of the WIM Act to indicate why non-compliance in any respect might affect the ‘jurisdiction’ of the Commission or bring about what is described in Kurrajong Holdings 9AT [60] ) as orders that are ‘a nullity’.

Section 260(1) of the WIM Act goes no further than stating that ‘a claim must be made in accordance with the applicable requirements of the WorkCover Guidelines’’. He felt that this: ‘falls well short of a stipulation that non-compliance deprives the Commission of its statutory jurisdiction and powers otherwise conferred under the legislative scheme’.

Section 289 may generate an issue as to the Commission’s authority to determine certain disputes unless certain things have occurred.

However, Section 289 does not contain any clear toehold for the argument (‘that appears to have been accepted within the Commission in decisions such as Kurrajong Holdings and Cottons Glass’) that ‘the Commission lacks “jurisdiction” to exercise its statutory powers with respect to a dispute if the disputed claim was not in accordance with the Guidelines’.

His Honour stated: ‘These provisions do not state that any or all failures to comply with the Guidelines might preclude the Commission from embarking on its task, in accordance with the statutory regime. One would think that in most cases, like the present, there would be no question about a dispute having arisen, although there may well be some confusion as to its parameters. The Commission has ample powers to resolve that

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confusion.’

Nothing in the statute appeared to support the proposition that the Guidelines operate to qualify or restrict the statutory scheme or the Commission’s duties and powers referable to investigating disputes that arise.

His Honour discussed Part 2 of the Guidelines, which applies to ‘Making and handling a claim for weekly payments and medical expenses compensation’’ and the ‘minimum identifying information’’ required for ‘initial notifications’’. He concluded that the only “sanction” for non-compliance with Part 2 was found in Rule 10.1.5. This required the insurer to notify the worker in writing that the claim contains ‘an error that is not obvious or typographical’’ and how to correct that deficiency (i.e.; where the worker refuses to sign the declaration, no medical certificate received’ etc). The worker may correct the error at any time and, when it is corrected, the time for the insurer to determine the claim commences. His Honour concluded: ‘Once again, this falls well short of purporting to control the jurisdiction of the Commission.’

If Barrow is strictly applied to the Case Study, it is arguable that Part 5 of the Guidelines represents a non-binding indication of policy and not a mandatory requirement for making a claim for lump sum compensation and that the Commission would have jurisdiction to determine a dispute in relation to all alleged injuries and claims for lump sum compensation despite the worker’s failure to comply with Part 5. However, it is possible that the Case Study can be distinguished from the facts in Barrow for the following reasons: •

The Court determined that the basis for the jurisdictional argument was contrary to the evidence before the Commission and that the ground of appeal was without merit; and

No dispute in relation to lump sum compensation was before the Commission. Accordingly, neither the Commission nor the Court of Appeal specifically considered Part 5 of the Guidelines.

In the Case Study, it is my view that regardless of the decision in Barrow, the dispute was not properly referred to the Commission as the Insurer advised the worker’s solicitors of the deficiency of the claim and of how to correct it within the required time. The worker’s solicitors failed to respond and the time for the Insurer to determine the claim had not commenced when the dispute was referred. However, the position is far less clear if the Insurer had failed to notify the worker’s solicitors of the deficiency in the claim and how to rectify it within the required time or at all. In the light of Barrow it is arguable that the Insurer would not be able dispute jurisdiction in subsequent Commission proceedings. However, only time will tell if this is correct.

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Referrals to Approved Medical Specialists Section 321 WIMA provides that a medical dispute may be referred for assessment by a Court, the Commission or the Registrar, either of their own motion or at the request of a party to a dispute. However, only the Registrar – and not Arbitrators - can make referrals to an Approved Medical Specialist (AMS) for assessment of permanent impairment under Section 66 WCA. However, the Registrar cannot refer a worker for medical assessment of permanent impairment where liability is in issue and has not been determined by the Commission. The Commission must determine liability before referral to AMS: Section 321(4) WIMA. Prior to 1 November 2006, an ARD that claimed lump sum compensation was allocated to an Arbitrator, who conducted a conciliation teleconference to attempt resolution of the claim prior to referring the matter to an AMS. Since 1 November 2006, the matter will not be referred to an Arbitrator unless there is a dispute on liability that requires determination. If there is no dispute on liability, or if no Reply is filed on behalf of the Employer or Insurer, a dispute under Section 66 will be referred directly to an AMS by the Registrar and the matter will only be allocated to an Arbitrator if the Medical Assessment Certificate contains an assessment that entitles the worker to compensation for pain and suffering under Section 67 of the Act. Please also note that in lump sum compensation disputes involving assessments of whole person impairment (for injury on/after 1 January 2002), WorkCover NSW has discouraged Scheme Agents from compromising between competing WPI assessments. This means that prior to assessment by an AMS, a dispute under Section 66 can only be resolved if the Insurer is prepared to accept the worker’s WPI assessment or vice versa.

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RESTRICTION ON THE ADMISSION OF MEDICAL EVIDENCE The Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006 amended the Workers Compensation Regulation 2003 to; •

restrict the number of medical reports that can be admitted in Commission proceedings;

restrict the disclosure of forensic medical reports to Approved Medical Specialists; and

restrict the recovery of costs of medical reports.

RESTRICTION ON THE NUMBER OF MEDICAL REPORTS THAT CAN BE ADMITTED IN PROCEEDINGS Clause 43(1) of the Regulation provides that in any proceedings on a claim or a work injury damages threshold dispute, only one forensic medical report may be admitted on behalf of a party to the proceedings. This report must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury: Clause 43(2). Where the worker has been treated by more than one specialist medical practitioner with different qualifications, then an additional forensic medical report may be obtained from a medical practitioner with qualifications in that specialty: Clause 43(3). Please note that forensic medical report is defined in clause 43(4) as follows: •

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 extent of an entitlement, in respect of a claim or dispute: Clause 43(4)(a).

Includes a medical report provided by a specialist medical practitioner in respect of an examination pursuant to Section 119 WIMA: Clause 43(4)(b).

Clause 43 AA allows supplementary reports to be admitted in the following circumstances:

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If it has the purpose of clarifying the original report. For example, if some omission in material originally provided results in the original opinion being based on inaccurate or incomplete information: Clause 43AA(1)(a).

It does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion contained in the original report: Clause 43AA(1)(b).

As an addendum to the original report, such that the original report and the addendum together constitute the report referred to in Clauses 43 and 43A: Clause 43AA(2).

The report has been provided by the medical practitioner who provided the original report unless the medical practitioner has ceased to practice in the specialty concerned – permanently or temporarily. In that case, a supplementary report can be provided by another medical practitioner of the same specialty: Clause 43AA(3).

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Workers Compensation in New South Wales by Michelle Riordan

RESTRICTION ON DISCLOSURE OF FORENSIC MEDICAL REPORTS TO APPROVED MEDICAL SPECIALISTS Clause 43A of the Regulation provides that a forensic medical report must be disclosed to an AMS in relation to a claim or work injury damages threshold dispute if any one of the following occurs: •

The report was admitted in proceedings: Clause 43(1)(a).

No decision has been made as to whether or not the report is to be admitted, and; • • •

the report was the report nominated by the claimant or respondent as the report that the claimant or respondent would introduce into evidence in proceedings; the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent, as the case may be: Clauses 43(1)(b)(i) and (ii), respectively; or the Approved Medical Specialist calls for the production of the report under Section 324(1)(b) WIMA.

A forensic medical report cannot be disclosed to an Approved Medical Specialist other that in accordance with Clause 43A: Clause 43A(2). However, more than one forensic medical report cannot be disclosed to an Approved Medical Specialist on behalf of a party to proceedings: Clause 43A(3). The definition of forensic medical report contained in Clause 43A(4) is identical to that of Clause 43(4) (see above).

RESTRICTION ON RECOVERY OF COST OF MEDICAL REPORTS Clause 45(1) provides that a party to proceedings is not entitled to be paid for or recover the cost of a medical report in connection with a claim unless the report: •

has been admitted into those proceedings on behalf of a party; or

has been disclosed to an Approved Medical Specialist.

Clause 45(2) provides that if no proceedings have been commenced, a party is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on the other party, and: •

the report would be admissible in Commission proceedings; or

the report could be disclosed to an Approved Medical Specialist.

Reference to a claim includes a reference to an initial notification of injury (See Part 3, Chapter 7 WIMA) and a reference to proceedings includes a reference to proceedings in respect of payment of provisional weekly payments under WIMA: Clauses 45(3)(a) & (b), respectively.

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Workers Compensation in New South Wales by Michelle Riordan

Review and Appeals APPEALS AGAINST DECISIONS OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR The 2006 Regulation provided for new claims procedures relating to an appeal against the decision of the Commission constituted by an Arbitrator. This topic is addressed in detail in Deputy President Roche’s paper and I refer you to that paper.

APPEALS AGAINST DECISIONS OF APPROVED MEDICAL SPECIALISTS The Registrar has a new power to refer all appeals to either; •

a Medical Appeal Panel;

a single medical assessor for further assessment; or

back to the original medical assessor for reconsideration.

Section 378 WIMA states that the Registrar, an Approved Medical Specialist or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar, the Approved Medical Specialist or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given: Section 378(1) WIMA. Similarly, the Registrar, Approved Medical Specialist or an Appeal Panel may alter the text of a decision to correct an obvious error (i.e. Slip Rule): Section 378(2). The Registrar, Approved Medical Specialist or an Appeal Panel must reconsider any matter referred to it for reconsideration not later than 2 months after the referral is made: Section 378(3) WIMA. The altered or amended decision is taken to be the decision of the Registrar, Approved Medical Specialist or an Appeal Panel: Section 378(4) WIMA. ‘Decision’’ is defined to include ‘an assessment or further assessment by an Approved Medical Specialist or an Appeal Panel’: Section 378(6) WIMA.

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Other Amendments EXPEDITED ASSESSMENTS The jurisdictional limited for an Interim Payment Direction in relation to a claim for medical expenses has increased from $5,000 to $7,500. However, in a claim for arrears of weekly compensation for a period of up to 12 weeks where an Interim Payment Direction is not possible (See: Section 297(3) WIMA), the Registrar or her Delegate can deal with this claim under the new Division 2A of the WIMA. The Registrar determines liability for these claims. However, unlike the previous procedure, in which the Registrar’s recommendation did not constitute a determination of liability for the purpose of future disputes, a decision under Division 2A does impact on future liabilities.

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Workers Compensation in New South Wales by Michelle Riordan

Proceedings Commenced by way of an ARD The Workers Compensation Rules were extensively amended in November 2006. One such amendment that impacts on daily practice in this jurisdiction is the introduction of a Notice for Production and the restriction on the issue of the Direction for Production. A Notice for Production can only be served on a party to the proceedings and it can only be served within 21 days of the date of registration of the ARD: Rule 12.3. Rule 13.3 provides that a party may request the Arbitrator to issue a Direction under Section 357 WIMA for production of documents by a person who is not a party to the proceedings. Rule 13.4 states that a Direction for Production must not issue where the party requesting the Direction is entitled to be provided with the documents (or copies of the documents): •

under an obligation imposed on a worker, employer or insurer in respect of a claim for compensation – under the Workers Compensation Act Act, the Workers Compensation Regulation 2003 or any related WorkCover Guidelines: Rule 13.4(2)(a)); or

under an obligation arising under Part 7 WCA, in circumstances where the documents are in the possession or control of the Workers Compensation Nominal Insurer or any agent of the Nominal Insurer: Rule 13.4(2)(b).

In deciding whether to order the issue of the Direction for Production, an Arbitrator may determine any objection by a party, direct the time for service of the direction and the time for production, direct the making of access orders or make such other others as the Arbitrator thinks fit: Rule 13.4(3) Prior to 1 November 2006, there was a widespread practice of filing Directions for Production in proceedings commenced by way of an ARD. In the case of a worker, the Directions for Production were either lodged at the same time as the ARD, or within 7 days thereafter. In the case of a respondent, these were either lodged with the Reply or within 7 days thereafter. As a result, it was not uncommon for both parties to issue Directions for Production on the same person (usually either treating doctors or previous employers and insurers). This resulted in considerable duplication of process and increased costs associated with the payment of conduct money to the producer. The current procedure confers discretion on an Arbitrator in relation to the issue of Directions for Production and it has been my experience that it is extremely difficult to secure leave to issue these unless it is possible to persuade the Arbitrator that the documents that are sought could not be previously obtained by some other means. For example, it will be difficult to obtain leave to issue a Direction for Production to a treating doctor unless the Arbitrator is persuaded that the information sought is relevant to the current dispute and that an attempt has been made to obtain the doctor’s records by way of a request for clinical notes or the like. I have recently had cases where the worker had not lodged a formal Claim Form and the insurer did not have a signed Authority from the worker for the release of information by his treating doctors. A request for a signed authority was made to the worker’s solicitors, but the

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authority was not forthcoming. A request for clinical notes was made to the doctor, but the request was refused as there was no signed authority from the worker. At a teleconference, the Arbitrator granted leave to issue a Direction for Production to that doctor. I suggest that as a matter of practice, if a request for provision of a signed authority for release of medical records is received from or on behalf of an insurer, the request is complied with and the Authority provided without delay. This will enable the insurer to undertake investigations before the dispute is referred to the Commission and will not result in undue delay in the determination of the dispute by the Commission.

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For more information, please contact:

Michelle Riordan Partner T: 02 8257 5738 michelle.riordan@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Business & Property | Commercial Disputes | Insurance & Financial Services | Workers Compensation | Workplace Relations

www.turkslegal.com.au This Pap er is cur rent at i t s d ate o f p u b l i c at i o n . Wh i l e eve r y c a re h a s b e e n t a k e n i n t h e p re p a rat i o n o f t h i s Pa p e r i t d o e s not constitute legal advice and should n o t b e re l i e d u p o n fo r t h i s p ur p o s e. Sp e c i f i c l e g a l a dv i ce s h o u l d b e s o u g ht o n p a r t i c u l a r m atters. Tur ksLegal do es not accept resp on s i b i l i t y fo r a ny e r ro r s i n o r o m i s s i o n s f ro m t h i s Pa p e r. Th i s Pa p e r i s co py r i g ht a n d n o p a r t m ay b e repro duced in any for m without the p e r m i s s i o n o f Tu r k s Le g a l . Fo r a ny e n q u i r i e s, p l e a s e co nt a c t t h e a u t h o r o f t h i s Pa p e r.


Workers Compensation in New South Wales  

The attached paper was prepared for the CLE Centre and was presented at its Civil Litigation Day Seminar on 26 October 2007. The paper revie...

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