Workers Compensation Commission

The Workers Compensation Commission is responsible for solving disputes between workers, employers and insurers in New South Wales. The commission is an independent tribunal formed under the Workplace Injury Management and Workers Compensation Act 1988.

Section 367 of the lists the objectives of the commission:

(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.

The commission is governed by the Workers Compensation Commission Rules 2011. The Act is to be construed with the Workers Compensation Act 1987. In the event of an inconsistency between the two pieces of legislation, the former prevails.

Lodging an application

An employee must have submitted a claim on their employer or employer’s workers compensation insurer before applying to the commission to resolve a dispute.

If the worker is not satisfied with the insurer’s decision about the claim, they can apply to the commission. They can also apply if the insurer:

• has failed to decide the claim;
• has not accepted all or part of the claim;
• has accepted the claim but offers an amount of compensation that is not acceptable.

Legal disputes

Most disputes in this category relate to weekly compensation, medical expenses compensation, lump sum compensation and payments linked to the death of an employee.

Issues to resolve could include:

• whether an injury occurred;
• the nature of the injury;
• whether the injured person was a worker;
• whether the injury occurred at work;
• whether work contributed substantially to the injury;
• whether medical treatment was reasonably necessary;
• the amount of compensation payable.

The first step is informal via teleconferencing. If the dispute is not resolved, in-person conciliation is adopted. If the dispute remains unresolved, formal arbitration before commission can take place.

Cases the Workers Compensation Commission has been asked to determine include:

• Whether the cost of Lite n’ Easy meals constituted a reasonably necessary medical expense when a worker gained weight due to an injury which impaired mobility.
• Whether a worker, who was predisposed to heart problems, was entitled to compensation after he suffered a heart attack while lifting a heavy water container.
• Whether a worker who suffered an eye injury while trying to protect colleagues from an assault was entitled to compensation.
• Whether the cost an assistance dog, which was acquired by a worker to deal with PTSD and panic disorder, was considered a reasonably necessary medical expense.
• Whether a person who suffered psychological injury from appearing on a reality television show was classed as a worker for compensation purposes.

Medical disputes

In these disputes, factors considered include an employee’s condition, fitness and degree of permanent impairment, the nature of their injury and the appropriateness of medical treatment.

An approved medical specialist appointed by the commission assesses the injury or condition, and reviews reports and investigations such as scans. The specialist provides a Medical Assessment Certificate to help the parties solve the dispute. If no agreement is reached, the commission can refer the dispute to an arbitrator.

Damages disputes

Mediation is mandatory in this category. The worker needs to establish that their injuries resulted from their employer’s negligence and that there is at least 15 per cent permanent impairment to the body. The worker must have received all statutory lump sum entitlements before a claim for work injury damages can be lodged.

Expedited disputes

This process fast-tracks smaller disputes via a teleconference that is held 14 days from the date of an application.

Miscellaneous disputes

This process is used when there is no specific category for an application, such as in instances of an interim award of compensation, an order for interest on a payment, a review of weekly payments or an application for a costs order.

Appeals

A decision on a disputed workers compensation claim made by a commission arbitrator can be appealed within 28 days of the decision. Under Section 352(2) of the Act, a commission can hear an appeal if the amount of compensation is at least $5000 and at least 20 per cent of the amount awarded in a decision appealed against. A decision can be confirmed, remitted back to the arbitrator, or revoked and a new decision made.

Workers Compensation Independent Review Office

This office handles complaints about insurers from injured workers. Its other functions are listed in Section 27 of the Act and include:

• to inquire into and report to the Customer Service Minister any issues related to the operation of the Act;
• to encourage insurers and employers to establish complaint resolution processes.

The office also manages the Independent Legal Advice and Review Service which funds legal costs for workers challenging decisions made by insurers.

For advice or representation in any legal matter, please contact Armstrong Legal.