Chapter 7 New claims procedures
(1) In this Chapter:damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act.
existing claim means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section).
Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims.existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim.
insurer means a licensed insurer, specialised insurer or self-insurer, or a former licensed insurer.
new claim means any claim (made or entitled to be made) that is not an existing claim.
new claim matter means any matter arising under the Workers Compensation Acts in respect of a new claim.
related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation.
work injury damages means damages recoverable from a worker’s employer in respect of:
(a) an injury to the worker caused by the negligence or other tort of the employer, or(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.Note.However, work injury damages generally extends to damages recoverable from a worker’s employer in the case of an injury to a coal miner where the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999).
(2) In the definition of work injury damages in subsection (1), a reference to a worker’s employer includes a reference to:(a) a person who is vicariously liable for the acts of the employer, and(b) a person for whose acts the employer is vicariously liable.(3) A claim served on an insurer in accordance with the WorkCover Guidelines or forwarded to an insurer by the employer is taken to have been made on the insurer (and to have been so made when it was made on the employer).
Except as otherwise specifically provided in this Chapter, this Chapter applies to and in respect of new claim matters only.Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims.
Part 2 Giving notice of injury and making a claim
This Division applies only in respect of injuries received after the commencement of this section.
Words and expressions used in this Part have the same meaning as in Part 5 (Common law remedies) of the 1987 Act.
254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.(3) Each of the following constitutes special circumstances:(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,(d) the injury has been reported by the employer to the Authority in accordance with this Act.(4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011,(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.
255 How notice of injury is given
(1) A notice of injury must state:(a) the name and address of the person injured, and(b) the cause of the injury (in ordinary language), and(c) the date on which the injury happened.(2) A notice of injury may be given orally or in writing.(3) If there is more than one employer, a notice of injury may be given to any one of those employers.(4) A notice of injury is taken to have been given to an employer:(a) if it is given to any person designated for the purpose by the employer, or(b) if it is given to any person under whose supervision the worker is employed.(5) A written notice of injury may be served by delivering it to, or by sending it by post to, the residence or any place of business of the person on whom it is to be served.(6) If the regulations so require (and despite anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations.
(1) A register of injuries must be kept in some readily accessible place at every mine, quarry, construction site, factory, workshop, office or shop.(2) A worker employed at any such mine, quarry, construction site, factory, workshop, office or shop, or any person acting on the worker’s behalf, may enter in the register of injuries particulars of any injury received by the worker.(3) The regulations may prescribe the form of a register of injuries and the particulars to be entered in the register.(4) If particulars of an injury are duly entered in a register of injuries as soon as possible after an injury happened, the entry is sufficient notice of the injury for the purposes of this Act.(5) If subsection (1) is contravened, the manager of the mine or quarry, or the occupier of the construction site, factory, workshop, office or shop, is guilty of an offence.Maximum penalty: 50 penalty units.
257 Notice of incapacity, medical etc treatment and damage to property
(1) The provisions of this Part apply with respect to:(a) the giving of notice of incapacity resulting from injury that happens after the worker leaves the employment in which the worker was at the time of the injury, and(b) the giving of notice of any medical or related treatment, hospital treatment, workplace rehabilitation service or ambulance service to which Division 3 of Part 3 of the 1987 Act applies, and(c) the giving of notice of any damage to property to which Division 5 of Part 3 of the 1987 Act applies,in the same way as those provisions apply to notice of injury.(2) The particulars required to be given in any such notice are (subject to the regulations) reasonable particulars of the incapacity, of the treatment or service or of the damage to property.
A person must not make a statement in a notice given by the person under this Division knowing that the statement is false or misleading in a material particular.Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
Division 2 Making a claim for compensation or damages
(1) This Division applies to the making of a claim after the commencement of this section (even if the injury concerned was received before the commencement of this section).(2) However, this Division does not apply to the making of a claim for work injury damages if court proceedings to recover the work injury damages concerned were commenced before the commencement of this section.
(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:(a) the form in which a claim is to be made,(b) the manner in which a claim is to be made,(c) the means by which a claim may be made,(d) the information that a claim is to contain,(e) requiring specified documents and other material to accompany or form part of a claim,(f) such other matters as may be prescribed by the regulations.(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.
261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.
262 Time within which claim for work injury damages must be made
Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.
263 Lump sum compensation claims to be made at same time
(1) All claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time.(2) A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of proceedings) unless there is a good reason for the claim being made later.
264 Action by employer in respect of claims, injuries and compensation
(1) An employer (not being a self-insurer) who receives a claim or any other documentation in respect of a claim must, within 7 days after receiving the claim or documentation, forward it to the employer’s insurer.Maximum penalty: 50 penalty units.
(2) An employer who receives a request from the employer’s insurer for specified information in respect of a claim or notified injury, or documentation in respect of a claim or notified injury, must, within 7 days after receipt of the request, furnish the insurer with such of the specified information or documentation as is in the employer’s possession or reasonably obtainable by the employer.Maximum penalty: 50 penalty units.
(3) An employer who has received compensation money under this Act from an insurer must, as soon as practicable, pay the money to the person entitled to the compensation.Maximum penalty: 50 penalty units.
(4) A person is not guilty of an offence for a failure to comply with a provision of this section if there was a reasonable excuse for that failure.(5) In this section:employer’s insurer means the insurer who the employer believes is liable to indemnify the employer in respect of the claim or injury concerned.
notified injury means an injury to a worker notified to an insurer.
Division 1 Special provisions for commencement of weekly payments after initial notification of injury
This Division applies in respect of the initial notification of an injury after the commencement of this section (even if the injury concerned was received before the commencement of this section).
266 Meaning of initial notification of injury
In this Part, initial notification to an insurer of an injury to a worker means the first notification of the injury that is given to the insurer, in the manner and form required by the WorkCover Guidelines, by the worker or the employer or by some other person (for example, a medical practitioner) acting for or on behalf of the worker or the employer.
267 Duty to commence weekly payments following initial notification of injury
(1) Provisional weekly payments of compensation by an insurer are to commence within 7 days after initial notification to the insurer of an injury to a worker, unless the insurer has a reasonable excuse for not commencing those weekly payments.(2) A person does not have a reasonable excuse for not commencing those weekly payments unless the person has an excuse that the WorkCover Guidelines provide is a reasonable excuse.(3) The payment of provisional weekly payments of compensation under this section is on the basis of the provisional acceptance of liability by the insurer for a period of up to 12 weeks determined by the insurer having regard to the nature of the injury and the period of incapacity.(4) The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.(5) An insurer who fails to commence weekly payments of compensation as required by this section is guilty of an offence.Maximum penalty: 50 penalty units.
268 Insurer must notify worker of reasonable excuse for not commencing weekly payments
If an insurer does not commence weekly payments of compensation because the insurer has a reasonable excuse for not doing so, the insurer must within 7 days after receiving the initial notification of injury give the worker notice in writing that the insurer has a reasonable excuse for not commencing weekly payments of compensation and include in that notice:(a) details of that reasonable excuse, and(b) a statement that the worker is entitled to make a claim for compensation and that the claim will be determined within 21 days, and(c) details of how that claim can be made.Maximum penalty: 50 penalty units.
269 Notice to be given of commencement of weekly payments
As soon as practicable after an insurer commences weekly payments of compensation under this Division, the insurer must give the worker a notice in writing notifying the worker that:(a) weekly payments of compensation to the worker have commenced on the basis of provisional acceptance of liability by the insurer, and(b) the payment of weekly payments of compensation to the worker will continue for a period (up to a maximum of 12 weeks) determined by the insurer having regard to the nature of the injury and the period of incapacity, and(c) the insurer will develop an injury management plan for the worker (if required to do so by Chapter 3), and(d) the worker is entitled to make a claim for compensation (and include details of how that claim can be made).
270 Obligations of worker to provide authorisations and medical evidence
(1) An insurer who commences weekly payments of compensation under this Division may require the worker to provide the insurer with:(a) a medical certificate certifying as to the worker’s incapacity for work, and(b) a form of authority signed by the worker authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the worker in connection with the injury to give the insurer information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the injury.(2) The insurer may discontinue weekly payments of compensation under this Division if the worker fails to comply with a requirement under this section within 7 days after it is communicated to the worker by the insurer.Note. This section does not limit the obligations of a worker under section 44B (Evidence as to work capacity) of the 1987 Act.
271 Liability to make weekly payments not affected by making of claim
(1) An obligation of an insurer to make weekly payments of compensation pursuant to the provisional acceptance of liability under this Division ceases if the insurer disputes liability to make those payments.Note. Section 74 requires notice of a dispute to be given.(2) Otherwise, a liability to make weekly payments of compensation pursuant to the acceptance of liability on a provisional basis under this Division is not affected by the making of a claim for compensation.
(1) If an insurer pays any compensation under this Division and another insurer or another employer accepts liability to pay compensation to the worker in respect of the injury concerned, the insurer is entitled to recover the compensation so paid as a debt from that other insurer or other employer.(2) Any amount so recoverable is taken to have been payable by the other insurer or other employer as compensation to the injured worker.
273 Provision for recovery of excess for provisional payments
Section 160 (Recovery of excess from employer) of the 1987 Act and section 152 of this Act apply to and in respect of the payment of provisional weekly payments of compensation under this Division as if the payment were payable under a weekly compensation claim as referred to in those sections.
Division 2 Claims for weekly payments
274 Liability to be accepted and weekly payments commenced within 21 days
(1) Within 21 days after a claim for weekly payments is made the person on whom the claim is made must determine the claim by:(a) accepting liability and commencing weekly payments, or(b) disputing liability.Note. Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given.(2) An insurer can accept liability for weekly payments on a provisional basis for a period of up to 12 weeks determined by the insurer having regard to the nature of the injury and the period of incapacity.(3) The acceptance of liability on a provisional basis operates to extend the period within which the claim must be determined until the end of the period for which liability has been accepted on a provisional basis.Note. This allows the insurer more time to determine liability while providing for the commencement of weekly payments on the basis of the provisional acceptance of liability.(4) Liability cannot be accepted on a provisional basis under this section if the insurer is already making weekly payments on the basis of the provisional acceptance of liability under Division 1 when the claim for weekly payments is made.(5) The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.(6) An employer is not required to determine a claim as provided by this section if:(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.Note. A claim forwarded to the insurer is taken to have been made on the insurer.
275 Duty to commence provisional weekly payments if claim is first notification of injury
(1) If the claim for weekly payments is the first notification that an insurer has received of the injury to the worker, section 267 (Duty to commence weekly payments following initial notification of injury) applies to require the commencement of provisional weekly payments of compensation within 7 days after the claim is made.(2) The provisional acceptance of liability pursuant to the commencement of provisional weekly payments of compensation under that section operates to extend the period within which the claim must be determined for the purposes of this Division until the end of the period for which liability has been provisionally accepted.Note. This allows the insurer more time to determine liability while providing for the commencement of weekly payments on the basis of the provisional acceptance of liability.
276 Continuation of provisional payments started before claim made
(1) If an insurer is already making provisional weekly payments when the claim for weekly payments is made (on the basis of the provisional acceptance of liability before the claim was made), the period within which liability for weekly payments must be determined is extended to the end of the period for which liability has been provisionally accepted.(2) If the period for which liability has been provisionally accepted ends before the end of the period within which liability for weekly payments must be determined, the insurer may continue to make weekly payments on the basis of the provisional acceptance of liability until the end of that period.
277 Provision for recovery of excess for provisional payments
Section 160 (Recovery of excess from employer) of the 1987 Act and section 152 of this Act apply to and in respect of the payment of provisional weekly payments of compensation under this Division as if the payment were payable under a weekly compensation claim as referred to in those sections.
278 Early acceptance of liability not prevented
This Division does not prevent the acceptance of liability and the commencement of weekly payments before the end of the provisional liability period.
Division 3 Claims for medical expenses
279 Liability to be accepted within 21 days
(1) Within 21 days after a claim for medical expenses compensation is made the person on whom the claim is made must determine the claim by accepting or disputing liability.Note. Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given.(2) An employer is not required to determine a claim as provided by this section if:(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.Note. A claim forwarded to the insurer is taken to have been made on the insurer.
280 Provisional acceptance of liability
(1) An insurer can accept liability for medical expenses compensation on the basis of the provisional acceptance of liability for an amount of up to $5,000 or such other amount as may be specified by the WorkCover Guidelines.(2) The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.
Division 4 Claims for lump sum compensation and work injury damages
280A Claim for lump sum compensation a pre-condition to damages claim
A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages.
280B Lump sum compensation to be paid before damages recovered
(1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.(2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.Note. This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because section 151A of the 1987 Act would prevent the payment of compensation after damages are recovered).
281 Liability to be accepted and settlement offer made
(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by:(a) accepting liability and making a reasonable offer of settlement to the claimant, or(b) disputing liability.(2) A claim must be so determined:(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,whichever is the later.Note. Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of permanent impairment of the injured worker resulting from the injury is not fully ascertainable.(2B) When the person on whom a claim is made accepts or disputes liability, the person must notify the claimant as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages.(3) An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.(4) If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted.(5) An employer is not required to determine a claim as provided by this section if:(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.Note. A claim forwarded to the insurer is taken to have been made on the insurer.(6) This section does not apply to a claim for work injury damages in respect of the death of a person, except as the WorkCover Guidelines may otherwise provide.
282 Relevant particulars about a claim
(1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim:(a) the injury received by the claimant,(b) all impairments arising from the injury,(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,(g) such other matters as the WorkCover Guidelines may require.(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.(4) In this section, injury is not limited by the meaning given by section 4.
Division 5 Enforcement of claims obligations
283 Offence of failing to determine a claim for compensation
(1) A person who fails to determine a claim as and when required by this Part is guilty of an offence unless the person has a reasonable excuse for the failure.Maximum penalty: 50 penalty units.
(2) A person does not have a reasonable excuse for a failure for the purposes of this section unless the person has an excuse that the WorkCover Guidelines provide is a reasonable excuse.(3) A person who has or anticipates having a reasonable excuse for the purposes of this section must notify the claimant in writing as soon as practicable.
284 Insurer liable to pay fee if claim goes to assessment
(1) If it appears to the Registrar that an insurer has:(a) failed without reasonable excuse to determine a claim as and when required by this Part, or(b) referred a matter that the insurer knows is not a genuine dispute for the purpose of delaying, without good cause, the determination of a claim,and the claim concerned is referred to the Commission for determination of a dispute or for assessment, the Registrar is to direct the insurer to pay the administration fee provided for by this section.(2) The administration fee is a fee of $250 or such other amount as may be prescribed by the regulations and is payable to the Authority for payment into the WorkCover Authority Fund.(3) (Repealed)(4) An administration fee payable under this section is recoverable as a debt due to the Authority.(5) A person does not have a reasonable excuse for a failure to determine a claim as and when required by this Part unless the person has an excuse that the WorkCover Guidelines provide is a reasonable excuse.(6) The Registrar is to notify the Authority of a direction under this section.
285 Offence of referring non-genuine disputes
A person on whom a claim is made must not refer a matter that the person knows is not a genuine dispute for the purpose of delaying, without good cause, the determination of the claim.Maximum penalty: 50 penalty units.
286 Partial acceptance of liability
(1) Liability for compensation can be partially accepted and partially disputed and references in this Part to accepting liability and disputing liability are to be interpreted accordingly.(2) A person who accepts liability for compensation on the basis of the partial acceptance of liability (including acceptance on a provisional basis) must, when notifying the claimant of the partial acceptance of liability, include details sufficient to ascertain the extent to which liability is accepted.
Part 4 Compensation dispute determination
287 Disputes to which Part applies
(1) This Part applies to a dispute in connection with a claim for compensation between:(a) the person who makes the claim and a person on whom the claim is made, or(b) the employer on whom the claim is made and the insurer on whom the claim is made.(2) This Part extends to a dispute that concerns failure to commence provisional weekly payments of compensation as required by Division 1 of Part 3 (even though no claim has been made for that compensation) and so extends as if:(a) a reference in this Part to weekly payments included a reference to provisional weekly payments, and(b) initial notification of injury (as defined in Part 3) constituted a claim for the compensation.
287A Reviews prior to referral
(1) A worker may request an insurer to review a claim after the insurer has disputed the claim or any aspect of the claim. A request may be made at any time before the dispute is referred to the Registrar for determination by the Commission.(2) On such a request, the insurer must review the claim not later than 14 days after the request is made and may accept the claim or, if the insurer determines that it disputes liability in respect of the claim or any aspect of the claim, must give notice of the dispute to the claimant.(3) The notice must contain the matters required to be set out under section 74 in a notice of a dispute and may contain such other information as the regulations may prescribe.(4) The notice is to comply with the other requirements for a notice given under section 74.
288 Referral of disputes to Commission
(1) Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.Note. A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment).(2) The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.
289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:(a) disputes liability for the claim (wholly or in part), or(b) fails to determine the claim as and when required by this Act.Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:(a) disputes liability for the claim (wholly or in part), or(b) fails to determine the claim as and when required by this Act.(2A) Subsection (2) does not prevent the referral to the Commission of a dispute about whether any proposed treatment or service is reasonably necessary as a result of an injury.Note. Section 60 of the 1987 Act provides for such a dispute to be referred to the Commission.(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:(a) wholly disputes liability for the claim, or(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or(c) fails to determine the claim as and when required by this Act.Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until:(a) 28 days after the claim for compensation is made, or(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),whichever happens first.(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.
289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.(2) A matter is taken to have been previously notified as disputed if:(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.
290 Information exchange between parties
(1) When a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and to the Registrar, as and when required to do so by the Rules, such information and documents as the Rules require.(2) A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.Maximum penalty: 50 penalty units.
(3) Any document or information that a party to a dispute has failed to provide in contravention of this section cannot be admitted on behalf of the party in proceedings on the dispute before the Commission.(4) Subsections (2) and (3) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.(5) The regulations may provide for exceptions to subsection (3). In particular, the regulations may authorise the Commission to permit the admission in proceedings before the Commission in specified circumstances of a document or information that would otherwise be not admissible under that subsection.(6) If the Registrar is satisfied that an applicant has failed without reasonable excuse to comply with a requirement of this section, the Registrar may do any one or more of the following:(a) refer the matter to the Authority,(b) note the matter in a certificate issued by the Registrar in respect of the dispute (together with details of the documents or information to which the failure relates),(c) order that a specified amount or proportion of the costs that would otherwise be recoverable by the party in connection with the referral of the matter to the Commission are not recoverable.
291 Duties of insurer when dispute referred to Commission
When the worker refers a dispute with an insurer for determination by the Commission, the insurer must review the claim to which the dispute relates as required by the WorkCover Guidelines.
When a dispute is referred for determination by the Commission, the Registrar may deal with the dispute under Part 5 (Expedited assessment) if the dispute is one to which that Part applies, and may defer determination of a dispute by the Commission while the dispute is being dealt with under Division 2 or 3 of that Part.
(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.(3) The Registrar may not refer for assessment:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).
294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.
294A Rules and regulations concerning medical evidence
(1) The Rules and the regulations may make provision for or with respect to:(a) the disclosure, by the furnishing of copies of reports or otherwise, of the nature of the expert medical evidence to be given in evidence before the Commission (including the exclusion of any such evidence for non-compliance with any requirement for the disclosure of the nature of the evidence), and(b) the disclosure of medical reports (including X-rays and the results of other tests) to approved medical specialists (including the exclusion of any such medical report for non-compliance with any requirement for the disclosure of the medical report), and(c) limiting the number of medical reports in connection with a claim or any aspect of a claim and, in particular, limiting the number of medical reports that may be admitted in evidence in proceedings before the Commission, and(d) limiting the number of expert witnesses that may be called by any party and otherwise restricting the calling of expert witnesses by a party.(2) This section only authorises Rules in connection with proceedings before the Commission.
295 Disputes to which Part applies
(1) This Part applies to a dispute referred to the Commission that concerns:(a) weekly payments of compensation or medical expenses compensation, or(b) failure by an insurer, employer or worker to comply with a requirement imposed by or under Chapter 3 (Workplace injury management).(2) This Part extends to a dispute that concerns failure to commence provisional weekly payments of compensation as required by Division 1 of Part 3 (even though no claim has been made for that compensation) and so extends as if:(a) a reference in this Part to weekly payments included a reference to provisional weekly payments, and(b) initial notification of injury (as defined in Part 3) constituted a claim for the compensation.
296 Exercise of functions of Registrar
(1) The Registrar may exercise functions under this Part with respect to a dispute on the basis of the documents and information provided to the Registrar when the dispute was referred for determination by the Commission.(2) Except as provided by this Part, the exercise of any function of the Registrar under Division 2 or 3 of this Part is not subject to appeal or review.
Division 2 Disputes concerning weekly payments or medical expenses
297 Directions for interim payment of weekly payments or medical expenses compensation
(1) When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the Registrar can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.(1A) An interim payment direction is not to be made when the dispute concerns a decision by the insurer to discontinue or reduce weekly payments of compensation on the basis of a work capacity decision under Division 2 of Part 3 of the 1987 Act.(2) An interim payment direction for payment of medical expenses compensation cannot be for an amount of more than $7,500 or such other amount as may be prescribed by the regulations.Note. The amount of $7,500 is subject to adjustment under Division 6 of Part 3 of the 1987 Act.(3) The Registrar is to presume that an interim payment direction for weekly payments of compensation is warranted unless it appears to the Registrar that:(a) the claim concerned has minimal prospects of success, or(b) the worker has returned to work, or(c) the injury was not reported by the worker as required by section 44 (Early notification of workplace injury), or(d) insufficient medical evidence is available concerning the period of incapacity of the worker, or(e) circumstances exist that are prescribed by the regulations as circumstances in which it is not to be presumed that such a direction is warranted.(4) If an injury management plan for the worker is in place or the insurer has accepted that the worker has received an injury (as defined in this Act), the Registrar is to presume that an interim payment direction for medical expenses compensation is warranted if satisfied that the treatment or service to which the compensation relates is reasonably necessary:(a) to prevent deterioration of the worker’s condition, or(b) to promote an early return to work, or(c) to relieve significant pain or discomfort, or(d) for such other reason as may be prescribed by the regulations.(5) Subsections (3) and (4) do not limit the circumstances in which an interim payment direction can be given.(6) An interim payment direction can be given subject to conditions.(7) A further interim payment direction or directions can be given after the expiry of any earlier direction.
298 Period for which interim payment of weekly payments can be directed
(1) An interim payment direction (or further interim payment direction) can direct the person on whom the claim is made to pay weekly payments of compensation for a period that does not exceed 12 weeks.Note. The 12-week limit applies to each direction or further direction.(2) An interim payment direction can direct payment of weekly payments during a period that is before the direction is given, but that period must not exceed 10 weeks.
299 Revocation of interim payment direction
(1) The Registrar can revoke an interim payment direction at any time.(2) When an interim payment direction is revoked, the obligation to make payments under the direction ceases.(3) The revocation of an interim payment direction does not affect the requirement to make payments before the revocation.
300 Offence of failure to comply with interim payment direction
A person who fails to comply with an interim payment direction is guilty of an offence.Maximum penalty: 50 penalty units.
301 Effect of payment under interim payment direction
(1) The payment of compensation in accordance with an interim payment direction is not an admission of liability by the insurer or employer.(2) An insurer can continue to pay compensation on the basis of the provisional acceptance of liability after the period for which payment is required by an interim payment order. The acceptance of liability on a provisional basis is not an admission of liability.
302 Rules relating to interim payment directions
The giving of interim payment directions by the Registrar is subject to relevant provisions of the Rules relating to those directions.
303 Commission can give interim payment direction
The Commission has and may exercise any function of the Registrar under this Division, in connection with a dispute referred to the Commission for determination.
If the Commission subsequently determines that a person is not liable to make the weekly payments of compensation that have been paid in accordance with an interim payment direction, the following provisions apply:(a) the worker or other person who received those payments is not required to refund those payments unless the Commission otherwise orders under paragraph (b),(b) if the Commission is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, the Commission may order the worker or other person concerned to refund the whole or a specified part of those payments,(c) the Commission may (instead of making an order for a refund) order any other person whom it determines was liable for the whole or any part of those payments to reimburse the person who made those payments,(d) those payments are to be excluded from any determination of the claims experience of the employer for the purposes of calculating the premium payable by the employer for a policy of insurance.
Division 2A Disputes concerning past weekly payments
304A Disputes to which Division applies
(1) This Division applies in respect of a dispute that concerns weekly payments of compensation if the payments are for a period (not exceeding 12 weeks) before the dispute is referred to the Commission, being a period in respect of which an interim payment direction under this Part may not be made.(2) A dispute that also relates to medical expenses may be dealt with partly under this Division (in relation to weekly payments) and partly under Division 2 (in relation to medical expenses).
304B Registrar may deal with dispute
(1) The Registrar may determine the dispute instead of the Commission.(2) For the purposes of determining the dispute and subject to the regulations, the Registrar has all the functions of the Commission constituted by an Arbitrator under the Workers Compensation Acts and any determination of the Registrar is taken to be the determination of the Commission constituted by an Arbitrator.(3) This Division does not affect any jurisdiction of the Commission to determine a dispute involving weekly payments of compensation.(4) To avoid doubt, the Registrar may, under section 371, delegate a function conferred on the Registrar under subsection (1) or (2).
Division 3 Disputes about non-compliance with Chapter 3
305 Disputes to which Division applies
This Division applies in respect of a dispute that concerns a failure by a party to the dispute to comply with an obligation imposed by or under Chapter 3.
306 Ways in which dispute can be dealt with
The Registrar may deal with the dispute:(a) by conciliating in connection with the dispute (to bring the parties to agreement having proper regard to relevant entitlements and obligations under the Workers Compensation Acts), or(b) by directing that an injury management consultant or other suitably qualified person (paid for by the employer) conduct a workplace assessment in connection with the dispute, or(c) by referring the dispute to the Authority, or(d) by making a recommendation as provided for by this Division.Note. The Registrar can refer the dispute to the Commission for determination if action under this Division is not successful.
307 Registrar can recommend certain action
(1) The Registrar can deal with the dispute by recommending that a party to the dispute take specified action, being action that the Registrar considers necessary or desirable to remedy the failure with which the dispute is concerned.(2) If the dispute concerns failure to comply with an obligation imposed by an injury management plan, the Registrar can recommend compliance with the injury management plan subject to such modifications as the Registrar considers appropriate.(3) If the dispute concerns the provision of suitable employment for the worker, the Registrar is to have regard to the requirements of section 49 in making a recommendation with respect to the provision of suitable employment.
308 Compliance with recommendations of Registrar
(1) A party to the dispute to whom a recommendation is made by the Registrar must, within 14 days (or such longer period as the Registrar may allow in a particular case):(a) comply with the recommendation, or(b) request the Registrar to refer the dispute to the Commission for determination.Maximum penalty: 50 penalty units.
(2) If a worker’s failure to comply with the Registrar’s recommendation constitutes a failure to comply with this section, the worker has no entitlement to weekly payments of compensation during any period that the failure to comply with the recommendation continues.(3) If an employer’s failure to comply with the Registrar’s recommendation constitutes a failure to comply with this section, the employer’s insurer is entitled to recover from the employer (despite the terms of the relevant policy of insurance) the amount of weekly payments of compensation paid by the insurer in respect of any period that failure to comply with the recommendation continues.
309 Employers—representation and admissions
(1) At any conference or hearing before the Registrar for the purposes of this Division:(a) an employer is entitled to separate representation if the employer requests separate representation, and(b) an employer is not prevented by the terms of any relevant policy of insurance from making any admission of liability in respect of the injury or claim concerned.(2) Evidence of an admission made by the employer at any conference or hearing before the Registrar for the purposes of this Division is not admissible in other proceedings before the Commission.
310 Referral of dispute to Commission
If the dispute is referred to the Commission for determination, the Commission may make orders with respect to any matter that can be the subject of a recommendation by the Registrar under this Division.
Part 6 Court proceedings for work injury damages
In this Part:claimant means a claimant for work injury damages.
defendant means the person against whom proceedings for the recovery of work injury damages are commenced or are to be commenced.
312 Forum for court proceedings
Proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction, subject to this Part.
Division 2 Threshold for award of damages
313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings
If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7.
314 What constitutes threshold dispute
(1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:(a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or(b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable.Note. Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable.(2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:(a) the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or(b) an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.(3) For the purposes of this Part, acceptance by the person on whom a claim for work injury damages is made of the degree of permanent impairment of the injured worker for the purposes of a claim against the person by the injured worker for permanent impairment compensation also constitutes acceptance of the degree of permanent impairment for the purposes of the claim for work injury damages.
Division 3 Pre-filing statements
315 Requirement for pre-filing statement before commencing court proceedings
(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.Note. Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages.(2) The pre-filing statement cannot be served unless:(a) the person on whom the claim is made wholly disputes liability for the claim, or(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.Note. The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 74 requires notice of a dispute as to liability to be given.
316 Defendant must respond to pre-filing statement
(1) The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by:(a) accepting or denying liability (wholly or in part), and(b) (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Rules may require.Note. A defence can be filed after 28 days but after 28 days the claimant can refer the claim to mediation under Division 4.(2) If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages.Note. If the defendant fails to respond within 42 days, the defendant is prevented from filing a defence (see section 318) and the claimant can proceed to obtain summary judgment on the question of liability. If the defendant responds to the pre-filing statement within 42 days, the matter is required to proceed to mediation under Division 4 before court proceedings can be commenced.
317 Defective pre-filing statement
(1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant.(2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination.(3) The Registrar may give a direction to the claimant as to the action necessary to cure any defect in the pre-filing statement served by the claimant. If the claimant fails to comply with the Registrar’s direction within the time allowed for compliance, the pre-filing statement served by the claimant is taken not to have been served.Note. The effect of such a failure is that the claimant must serve the pre-filing statement again.(4) If the documents and information that comprise the pre-filing statement are furnished to the defendant at different times, the pre-filing statement is not considered to have been served on the defendant until the last of the required documents and information is served.
318 Parties limited to pre-filing statement and defence
(1) For the purposes of court proceedings on a claim for work injury damages:(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.(2) The court is not to grant leave under this section unless satisfied that:(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and(b) the failure to grant leave would substantially prejudice the party’s case.(3) The regulations may provide for exceptions to this section.
318A Mediation of claim before commencement of court proceedings
(1) A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3.(2) The claimant need not refer a claim for work injury damages for mediation if the defendant has failed to respond to the claimant’s pre-filing statement as required under Division 3 within 42 days after it is served on the defendant.Note. A defence can still be filed in the 28–42 day period. A defence can be filed after 42 days but such a defence cannot dispute liability. A defence filed after 42 days can deal with such matters as quantum of damages or contributory negligence.(3) The defendant may decline to participate in mediation of the claim if the defendant wholly disputes liability in respect of the claim, but in any other case the defendant cannot decline to participate in mediation.(4) Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission.(5) A claim is referred for mediation by being referred to the Registrar for mediation by a mediator. The Registrar is to give directions as to which mediator is to mediate on a particular claim referred for mediation.(6) The Rules may make provision for or with respect to mediation under this Division.
318B Mediator to bring parties to agreement
(1) The mediator must use the mediator’s best endeavours to bring the parties to agreement on the claim.(2) Failing agreement, the mediator is to issue a certificate certifying as to the final offers of settlement made by the parties in the mediation.
318C Legal and other assistance at mediation
At the mediation of a claim, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the mediator.
(1) For the purposes of and in connection with the mediation of a claim, a mediator has all the functions of the Commission under sections 357–359 and those sections apply in respect of the mediation of a claim in the same way as they apply in respect of proceedings on a dispute before the Commission.(2) A mediator may award costs in connection with the mediation of a claim.
318E Offers made at mediation not to be disclosed to court
The amount of any offer of settlement made by a party in the course of mediation of a claim is not to be specified in any pleading, affidavit or other document filed in or in connection with court proceedings on the claim, and is not to be disclosed to or taken into account by the court, before the court’s determination of the amount of damages in the proceedings.
(1) The President is, in accordance with criteria developed by the Minister, to appoint persons to be mediators for the purposes of this Act to mediate on claims for work injury damages as and when required to do so by the Registrar.(2) Mediators are in the exercise of their functions subject to the general control and direction of the Registrar.(3) Subject to this section, a mediator holds office for such period (not exceeding 5 years) as may be specified in the instrument of appointment of the mediator, but is eligible for re-appointment.(4) A mediator is entitled to be paid such remuneration (including travelling and subsistence allowances) in respect of work done as a mediator as the Minister may from time to time determine in respect of the mediator.(5) A mediator is taken to have vacated office if the mediator:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(d) becomes a mentally incapacitated person, or(e) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(f) resigns the office by instrument in writing addressed to the President, or(g) is removed from office by the President.(6) The President may at any time remove a mediator from office.(7) Part 2 of the Public Sector Management Act 1988 does not apply to a mediator.
(1) A matter or thing done or omitted to be done by a mediator in the exercise of the mediator’s functions does not, if the matter or thing was done or omitted in good faith, subject the mediator personally to any action, liability, claim or demand.(2) A mediator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a mediator.
(1) The regulations may make provision for or with respect to the fees to be paid in connection with mediation under this Division.(2) In particular, the regulations may specify any such fee or the method by which the fee is to be calculated, and may specify by whom and in what circumstances the fee is payable.(3) Fees payable under the regulations under this section are payable into the WorkCover Authority Fund.
318I Orders for access to information and premises
(1) If there is no dispute that the degree of permanent impairment of an injured worker is sufficient for an award of damages, the Registrar may on the application of the claimant give either or both of the following written directions to the defendant:(a) a direction directing the defendant to produce to the claimant within a specified period specified reports and other documents in the defendant’s possession,(b) a direction directing the defendant to provide or allow the claimant access to specified premises within a specified period for a purpose relevant to the claimant’s claim.(2) A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
Note. The Commission also has power under section 357 to require the production of documents and the furnishing of information by the parties.
In this Act:approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),(b) the worker’s fitness for employment,(c) the degree of permanent impairment of the worker as a result of an injury,(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,(e) the nature and extent of loss of hearing suffered by a worker,(f) whether impairment is permanent,(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
320 Appointment of approved medical specialists
(1) The President is, in accordance with criteria developed by the Minister, to appoint medical practitioners to be approved medical specialists for the purposes of this Part.(1A) (Repealed)(2) The terms of any such appointment may restrict an approved medical specialist to medical disputes of a specified kind.(2A) One or more approved medical specialists may be appointed as a senior approved medical specialist, either by the instrument of appointment of the approved medical specialist or by a later instrument executed by the President.(3) The President is to ensure that, as far as reasonably practicable, arrangements are in place to facilitate the taking place of assessments under this Part in the regional areas of the State.(4) The Authority may arrange for the provision of training and information to approved medical specialists to promote accurate and consistent assessments under this Part.(5) The Registrar may from time to time issue a list of the medical practitioners who are for the time being appointed as approved medical specialists under this section. The list is evidence of the appointments concerned.(6) A matter or thing done or omitted to be done by an approved medical specialist in the exercise of functions under this Act does not, if the matter or thing was done or omitted in good faith, subject the approved medical specialist personally to any action, liability, claim or demand.
321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.(3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.(4) The Registrar may not refer for assessment under this Part:(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.
322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.(4) This section does not affect the operation of section 327 (Appeal against medical assessment).
323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.(5) (Repealed)Note. Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.
324 Powers of approved medical specialist on assessment
(1) The approved medical specialist assessing a medical dispute may:(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and(c) require the worker to submit himself or herself for examination by the approved medical specialist.(2) If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination:(a) the worker’s right to recover compensation with respect to the injury, or(b) the worker’s right to weekly payments,is suspended until the examination has taken place.(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.
325 Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:(a) set out details of the matters referred for assessment, and(b) certify as to the approved medical specialist’s assessment with respect to those matters, and(c) set out the approved medical specialist’s reasons for that assessment, and(d) set out the facts on which that assessment is based.(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.
326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:(a) the degree of permanent impairment of the worker as a result of an injury,(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,(c) the nature and extent of loss of hearing suffered by a worker,(d) whether impairment is permanent,(e) whether the degree of permanent impairment is fully ascertainable.(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.
327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.(3) The grounds for appeal under this section are any of the following grounds:(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),(c) the assessment was made on the basis of incorrect criteria,(d) the medical assessment certificate contains a demonstrable error.(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).Note. Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.(8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The WorkCover Guidelines can provide for the procedure on an appeal.(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or(b) a court or the Commission.(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.
330 Costs of medical assessment
(1) The costs of medical assessments under this Part (including the remuneration of approved medical specialists) are payable by the employer or insurer, except as otherwise provided by the regulations. The Authority may, for the purposes of meeting those costs, impose fees for the carrying out of medical assessments or make other arrangements for meeting those costs.(2) If a worker is required to submit himself or herself for examination pursuant to this Part, the worker is entitled to recover from the worker’s employer, in addition to any compensation otherwise provided:(a) the amount of any wages lost by the worker by reason of so submitting himself or herself for examination, and(b) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred in so submitting himself or herself.(3) If it is necessary for a worker to travel in order to submit himself or herself for examination but the worker is not reasonably able to travel unescorted, the fares, travelling expenses and maintenance referred to in this section include fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort for the worker provided to enable the worker to submit himself or herself for examination.(4) If the cost of fares, travelling expenses and maintenance referred to in this section includes the cost of travel by private motor vehicle, that cost is to be calculated at such rate as is fixed for the purposes of section 64 of the 1987 Act.(5) A reference in this section to a medical assessment includes a reference to a further medical assessment and an appeal against a medical assessment.
Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.
(1) In this Part:agent means a person who acts as agent for a person in connection with a claim.
agent service means any service performed by a person in the person’s capacity as an agent.
costs includes:
(a) costs actually incurred or to be incurred by a person claiming compensation or work injury damages, and(b) if liability for a claim is admitted without recourse to the Commission or court—the reasonable expenses incurred by a person in pursuing the person’s claim, and(c) costs incurred in relation to any proceedings in respect of a claim, and(d) costs incidental to an application for referral of a medical dispute for medical assessment, and(e) costs incidental to an application for registration of an agreement under section 66A of the 1987 Act or an agreement to commute liability to a lump sum, and(f) such other costs as may be prescribed by the regulations.court includes a court arbitrator or arbitrators.
medical report includes medical certificate and medical opinion.
(2) Expressions used in this Division have the same meanings as they have in Part 3.2 of the Legal Profession Act 2004, except as provided by this section.Note. Under the Legal Profession Act 1987, costs includes barristers’ and solicitors’ fees as well as other items that may be charged by barristers and solicitors (such as expenses and disbursements).
333 Costs to which Part applies
This Part applies to and in respect of costs payable on a party and party basis, on a practitioner and client basis or on any other basis, unless this Part or the regulations otherwise provides.
334 Part prevails over Legal Profession Act 2004
This Part, and the regulations under this Part, prevail to the extent of any inconsistency between them and the Legal Profession Act 2004 or the regulations under that Act.
An assessment of costs is to be made so as to give effect to the provisions of this Part (whether or not the assessment is made under Division 11 of Part 3.2 of the Legal Profession Act 2004).
336 Exclusion of matters from this Part
The regulations may make provision for or with respect to excluding any class of matters from any or all of the provisions of this Part.
Division 2 Fixing of maximum costs and fees
337 Maximum lawyer and agent costs
(1) The regulations may make provision for or with respect to the following:(a) fixing maximum costs for legal services or agent services provided to a claimant, an employer or an insurer in or in connection with any workers compensation matter or work injury damages matter,(b) fixing maximum costs for matters that are not legal services or agent services but are related to a claim for compensation or work injury damages (for example, expenses for witnesses or medical reports).(2) Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 2004.(3) A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.(4) An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.(5) This section does not entitle a legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.(6) The power under this section to make regulations fixing maximum costs for services or matters includes power to make regulations to provide that no amount is recoverable for a particular service or matter or class of services or matters, with the result that a legal practitioner or agent is not entitled to be paid or recover any amount for the service or matter concerned.
338 Costs of obtaining medical and other reports
To the extent that the regulations so provide, a legal practitioner or agent is not entitled to be paid or recover the cost of obtaining a medical report or other report obtained for use in connection with a workers compensation matter or work injury damages assessment.
339 Maximum fees payable to health service providers
(1) The Authority may, by order published in the Gazette, fix maximum fees for the provision by health service providers of the following services:(a) provision of any report for use in connection with a claim for compensation or work injury damages,(b) appearance as a witness in proceedings before the Commission or a court in connection with a claim for compensation or work injury damages.(2) An order under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 2004.(3) A health service provider is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.(4) In this section:health service provider means a person who provides a health service as defined in the Health Care Complaints Act 1993.
Editorial note. For orders published under this section see Gazettes No 178 of 7.11.2003, p 10480; No 34 of 18.3.2005, p 849; No 51 of 6.5.2005, p 1640; No 166 of 23.12.2005, pp 11904, 11906; No 192 of 29.12.2006, p 12014; No 83 of 29.6.2007, p 4364; No 175 of 30.11.2007, pp 8762, 8766; No 158 of 12.12.2008, pp 12257, 12263, 12291; No 207 of 18.12.2009, pp 6398, 6400, 6402; No 135 of 17.12.2010, pp 6002, 6031, 6051; No 127 of 16.12.2011, pp 7195, 7220, 7253 (and see erratum in Gazette No 130 of 20.12.2011, p 7269) and No 12 of 3.2.2012, pp 315, 327, 332.
Division 3 Special provisions for costs in compensation and damages assessment matters
This Division applies to costs payable by a party, or by a party’s insurer, in or in relation to a claim for compensation.
(1) Each party is to bear the party’s own costs in or in relation to a claim for compensation.(2) The Commission has no power to order the payment of costs to which this Division applies, or to determine by whom, to whom or to what extent costs to which this Division applies are to be paid.
344 Liability of legal practitioner for client’s costs in certain cases
(1) The Commission may, at any stage of a matter, make one or more of the following orders in respect of a legal practitioner whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, the matter:(a) an order disallowing the whole or any part of the costs between the legal practitioner and his or her client,(b) an order directing the legal practitioner to repay to his or her client the whole or any part of the costs that the client has been ordered to pay to any other party,(c) an order directing the legal practitioner to indemnify any party other than his or her client against the whole or any part of the costs payable by the party indemnified.(2) The Commission may refer a matter to a costs assessor for inquiry and report before making such an order.(3) The Commission may order that notice of such an order against a legal practitioner is to be given to the legal practitioner’s client in a specified manner.(4) A legal practitioner is not entitled to demand, recover or accept from his or her client any part of the amount for which the legal practitioner is directed by the Commission to indemnify a party pursuant to such an order.(5) This section does not limit any other provision of this Part.
Division 3A Special provisions for costs in work injury damages proceedings
(1) This section applies to costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages.(2) The regulations may make provision for or with respect to the awarding of costs to which this section applies. The regulations may provide for the awarding of costs on a party and party basis, on a practitioner and client basis, or on any other basis.(3) A party is not entitled to an award of costs to which this section applies, and a court may not award such costs, except as prescribed by the regulations under this Act or by the rules of the court concerned.(4) In the event of any inconsistency between the provisions of the regulations under this section and rules of court, the provisions of the regulations prevail to the extent of the inconsistency.
347 Regulations for costs assessment
(1) The regulations may make provision for or with respect to:(a) the assessment or taxation of costs payable to a legal practitioner or agent in connection with a claim for compensation or work injury damages, and(b) matters associated with the assessment or taxation of those costs.(2) In particular, the regulations may make provision for or with respect to any matter for or in connection with which provision is made by Division 11 of Part 3.2 of the Legal Profession Act 2004.(3) Regulations for the purposes of this Division may adopt, with or without modification, any of the provisions of Division 11 of Part 3.2 of the Legal Profession Act 2004.(4) Without limiting this section, the regulations may make provision for or with respect to the assessment of costs by the Commission.(5) The regulations may make such modifications to the provisions of Part 3.2 of the Legal Profession Act 2004 as may be consequential on the assessment or taxation of costs payable to a legal practitioner being provided for by the regulations under this Division rather than under Division 11 of that Part.
Part 9 Proceedings before Commission
The arrangement of the business of the Commission is to be as determined by the Registrar, subject to the regulations.
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.(2) A decision of or proceeding before the Commission is not:(a) to be vitiated because of any informality or want of form, or(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.
351 Reference of question of law on compensation claim to Commission constituted by Presidential member
(1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President.(2) The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator’s own motion.(3) The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law.(4) If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal.(5) Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter.(6) On the determination of a question referred to the Commission under this section:(a) if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or(b) if an award has been made in the matter in which the question arose, the award must be varied in such a way as will make it consistent with the opinion of the Commission on the question.(7) The reference of a question of law under this section may be by stating a case on a question of law.(8) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.
352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the procedural requirements of this section and any applicable Rules and regulations as to the making of an appeal have been complied with. The Registrar is not required to be satisfied as to the substance of the appeal.(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and(b) at least 20% of the amount awarded in the decision appealed against.(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.(4) An appeal can only be made within 28 days after the making of the decision appealed against.(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
353 Appeal against decision of Commission constituted by Presidential member
(1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.(3) A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made.(4) The following appeals under this section may be made only with leave of the Court of Appeal:(a) an appeal from an interlocutory decision,(b) an appeal from a decision as to costs only,(c) an appeal where the amount of compensation in dispute is less than $20,000 (or such other amount as may be prescribed by the regulations),(d) an appeal from a decision made with the consent of the parties.(5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:(a) if it is satisfied that the proceedings have been abandoned, or(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or(c) for any other ground of dismissal specified in the Rules.(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.
355 Arbitrator to attempt conciliation
(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.
356 Representation before Commission
(1) A person who is a party to proceedings before the Commission is entitled to be represented by a legal practitioner or by an agent.(2) The Commission may refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.(3) In proceedings in respect of a claim, the Commission may refuse to permit an insurer to be represented by a legal practitioner if the claimant is not represented by a legal practitioner.(4) A party to proceedings before the Commission is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at any conference or hearing.(5) The Commission must take into account any written submission prepared by a legal practitioner acting for a party to proceedings and submitted by or on behalf of the party (whether or not the party is represented by a legal practitioner at any conference or hearing in the proceedings).(6) In this section, agent means:(a) an officer of an industrial organisation of employers or employees registered under the Industrial Relations Act 1996, or(b) an officer of an association of employers or employees registered under the Workplace Relations Act 1996 of the Commonwealth, or(c) a person employed by a licensed insurer or former licensed insurer or by a self-insurer, or(d) a person employed by a solicitor, solicitor corporation or incorporated legal practice.
357 Power of Commission to require information
(1) The Commission may give a direction in writing to any person (whether or not a party to a dispute before the Commission) requiring the person:(a) to produce, at a time and place specified in the direction, specified documents in the possession of the person, or(b) to furnish specified information within a time specified in the direction.(2) The direction may require the documents to be produced or the information to be furnished:(a) to the Commission or to another party to a dispute before the Commission, in the case of a direction given to a party to the dispute, or(b) to the Commission in the case of a direction given to a person who is not a party to a dispute before the Commission.(3) A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
(4) If a person fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Commission or a court have the document or information admitted in the proceedings.(5) The Commission may exercise powers under this section at the request of a party to a dispute before the Commission or of the Commission’s own motion.(6) The Registrar has and may exercise any power of the Commission under this section.(7) The regulations or Rules may make provision for or with respect to any of the following matters:(a) exempting specified kinds of documents or information from the operation of this section,(b) specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,(c) specifying cases and circumstances in which the Commission is not to exercise the Commission’s powers under this section.
358 Power of Commission to provide documents and information to a party
(1) When documents or information relevant to proceedings before the Commission are produced or furnished to the Commission by a party to the proceedings or another person (whether or not pursuant to a requirement under this Act), the Commission may produce or furnish the documents or information to:(a) any other party to the proceedings, or(b) any other party’s legal representative, or(c) a medical practitioner (including an approved medical specialist).(2) The Commission may, when furnishing or producing information or documents to a legal practitioner or medical practitioner, direct that the person must not cause or permit disclosure of the information, or the information in the documents, to another party.(3) A legal practitioner or medical practitioner must not contravene the Commission’s direction under this section.Maximum penalty: 50 penalty units.
(4) The regulations may make provision for or with respect to any of the following matters:(a) exempting specified kinds of documents or information from the operation of this section,(b) specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,(c) specifying circumstances in which documents or information produced or furnished to the Commission may not be produced or furnished by the Commission to another party to the proceedings or to a legal practitioner or medical practitioner.
359 Summons to appear at conference or hearing
(1) The Registrar may issue a summons requiring the attendance of a person at any conference or hearing before the Commission in connection with proceedings before the Commission.(2) A person must not fail without reasonable excuse to comply with a summons served on the person under this section.Maximum penalty: 50 penalty units.
(3) In this section, conference includes a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
360 Powers of Commission to require evidence
(1) The Commission may require any person appearing before the Commission:(a) to give evidence on oath or affirmation (and may, for that purpose, administer an oath or affirmation), and(b) to answer any relevant question put to the person.(2) A person must not without reasonable excuse refuse or fail to comply with a requirement duly made under this section.Maximum penalty: 50 penalty units.
(3) A person is not obliged to answer a question under this section if the answer to that question would tend to incriminate the person of an offence.
361 Protection of legal practitioners, witnesses and others
(1) A practising legal practitioner or other person appearing before the Commission on behalf of a party has the same protection and immunity as a practising legal practitioner has in appearing for a party in proceedings in the District Court.(2) Subject to this Act, a person summoned to attend or appearing before the Commission as a witness has the same protection, and is subject to the same liabilities, as a witness in proceedings in the Supreme Court.
362 Recovery of amounts ordered to be paid
(1) For the purposes of the recovery of any amount ordered to be paid by the Commission (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.(2) A certificate given under this section must identify the person liable to pay the certified amount.(3) A certificate of the Registrar under this section that is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment.
(1) The Minister may from time to time by order make Rules of the Commission for or with respect to any aspect of procedures to be followed in connection with the jurisdiction or functions of the Commission, including provision for or with respect to:(a) the manner of referring claims or disputes for assessment or determination by the Commission, and(b) the documentation that is to accompany such a reference of a claim or dispute for assessment or determination, and(c) the manner of presenting documents and information to the Commission by the parties, including time limits for the presentation of the documents and information, and(c1) requiring the provision of documents and information by a party to a matter before the Commission to any other party to the matter, and(d) the making of assessments and determinations by the Commission, and(e) the manner of specifying an amount of damages or compensation, and(f) default awards and orders, and(g) the extension or abridgment of any period referred to in this Part, and(h) all matters of practice and procedure in proceedings before the Commission, and(i) the issue of a seal for the Commission and the use and effect of the seal, and(j) any other matter that this Act or the 1987 Act provides may be the subject of Rules of the Commission.(2) Rules of the Commission may be made so as to apply differently according to such factors as may be specified in the Rules.(3) On or before 1 July in each year (commencing 2002) or as soon as practicable after each such date, the Minister is to cause the Rules of the Commission, as in force for the time being, to be laid before both Houses of Parliament.(4) Rules of the Commission are not a statutory rule for the purposes of the Interpretation Act 1987.
365 Publication of decisions and inspection of registers of agreements
(1) The Commission may cause details of its decisions and determinations under the Workers Compensation Acts to be published.(2) The Commission may make the following available for public inspection by employers, insurers, workers, the Authority, and their legal representatives, and by such other persons or classes of persons as may be prescribed by the regulations:(a) (Repealed)(b) a summary of the details of agreements registered under section 66A of the 1987 Act.
Division 1 Workers Compensation Commission
366 Establishment of Commission
(1) The Workers Compensation Commission of New South Wales is established by this Act.(2) The Commission has and may exercise such functions as are conferred or imposed on it by or under the Workers Compensation Acts or any other Act.
(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.
(1) The Commission consists of the following members:(a) a President,(b) Deputy Presidents,(c) a Registrar,(d) Arbitrators.(2) The members of the Commission are to be appointed by the Minister.(3) The instrument of appointment of a member is to specify whether a member has been appointed as:(a) the President, or(b) a Deputy President, or(c) the Registrar, or(d) an Arbitrator.(4) One or more of the Arbitrators may be appointed as a Senior Arbitrator, either by the instrument of appointment of the Arbitrator or by a later instrument executed by the Minister.
369 Qualifications for appointment
(1) A person is eligible to be appointed as President only if the person is a Judge of a court of record.(2) A person is eligible to be appointed as Deputy President only if the person:(a) is or has been a judicial officer (within the meaning of the Judicial Officers Act 1986), or(b) is an Australian lawyer of at least 5 years’ standing.(3) A person is eligible to be appointed as the Registrar or as an Arbitrator only if the person:(a) is an Australian lawyer, or(b) has such qualifications, skills or experience as may be determined by the Minister.(4) The appointment of a person who is not an Australian lawyer as an Arbitrator may be made on terms that limit the person to dealing with matters of a particular type or types.
A member of the Commission has and may exercise the functions conferred or imposed on the member by or under this or any other Act.
(1) The Registrar has and may exercise all the functions of an Arbitrator.(2) The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.(3) The Registrar may exercise any of the functions of the Commission constituted by an Arbitrator to dismiss proceedings before the Commission.
372 Control and direction of members of Commission
(1) The members of the Commission other than the Arbitrators are, in the exercise of their functions, subject to the general control and direction of the President.(2) Arbitrators are, in the exercise of their functions, subject to the general control and direction of the Registrar.
373 Provisions concerning members
Schedule 5 has effect with respect to the members of the Commission.
(1) Such staff as may be necessary for the Commission to exercise its functions are to be employed under Chapter 2 of the Public Sector Employment and Management Act 2002 as staff of the Commission.(2) Those staff are, in the exercise of their functions, subject to the general control and direction of the Registrar.(3) This section does not affect the exercise of the functions of the appropriate Department Head under the Public Sector Employment and Management Act 2002 with respect to those staff.(4) The Authority or such other Department of the Government as the regulations may specify is to provide for the Commission:(a) facilities (including registry facilities), and(b) any additional staff that may be necessary.(5) The Department Head of the Department in which staff of the Commission are employed may delegate to the Registrar any of the Department Head’s functions under the Public Sector Employment and Management Act 2002 with respect to those staff (other than this power of delegation).(6) For the purposes of section 12 of the Public Finance and Audit Act 1983, the Registrar is taken to be an officer of the Department in which staff of the Commission are employed.
375 Constitution of Commission for particular proceedings
(1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.(2) The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.(3) For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.(4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).
Division 2 WorkCover guidelines
(1) The Authority may issue guidelines with respect to the following:(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,(a1) the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,(b) the giving of interim payment directions by the Registrar under Part 5,(c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of WorkCover Guidelines.(2) The Minister may issue guidelines with respect to the procedure for assessment under Part 7 (Medical assessment).(3) The Authority may amend, revoke or replace WorkCover Guidelines made by the Authority, and the Minister may amend, revoke or replace WorkCover Guidelines made by the Minister.(4) WorkCover Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.(5) WorkCover Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.(6) The regulations may make provision for or with respect to any matter for which the WorkCover Guidelines can provide.Editorial note. For Guidelines issued under this section see Gazettes No 21 of 4.2.2005, p 317; No 34 of 18.3.2005, p 852; No 129 of 27.10.2006, pp 9288, 9334, 9346, 9434, 9441; No 143 of 7.11.2008, p 10819; No 29 of 6.2.2009, p 826; No 63 of 17.4.2009, pp 1706, 1756, 1769; No 15 of 18.2.2011, p 826; No 30 of 23.3.2012, pp 793, 802 and No 101 of 28.9.2012, pp 4143, 4189, 4210, 4228.
377 Special requirements relating to WorkCover Guidelines relating to impairment
(1) This section applies to WorkCover Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.(2) Those Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations.(3) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to those Guidelines in the same way as those sections apply to statutory rules.
Part 11 Reconsideration of decisions
378 Reconsideration of decisions of Registrar or Appeal Panel
(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.