GN 8.3 Arbitrator decisions and appeals

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies to exempt workers

Overview

The Workers Compensation Commission (the Commission) has exclusive jurisdiction to examine, hear and determine all matters arising under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Workers Compensation Act 1987 (1987 Act). For the Commission’s role in respect of damages, see Insurer guidance GN 9.2 Work injury damages.

This guidance outlines the types of disputes and the process in the Commission to hear and determine disputes.

Note: coal miner workers compensation disputes are determined are determined by the District Court of NSW where coal miners have access to a specialist mining judge and a separate hearing list which exclusively deals with coal mining claims.

Note: The Commission’s mediators assist parties to resolve work injury damages disputes. The parties must participate in mediation before the worker can commence court proceedings. The Commission’s mediators are appointed by the President. Mediators are, in the exercise of their functions, subject to the general control and direction of the Registrar.

Types of dispute

Disputes are assigned to the most appropriate dispute resolution pathway:

  • legal disputes
  • medical disputes
  • expedited assessments
  • damages disputes
  • other disputes.

Information on the different dispute pathways is available on the Commission website. The Commission has produced a range of videos that show what to expect in the various disputes types in the Commission.

Legal disputes pathway

The disputes that go through this pathway are about entitlements to weekly compensation, medical and related expenses compensation, lump sum compensation for permanent impairment and payments in respect of the death of a worker. These disputes are dealt with by Arbitrators.

Disputed issues could include:

  • whether an injury has occurred
  • whether the injury happened at work
  • whether work was a substantial contributing factor to the injury
  • whether medical treatment is reasonably necessary
  • whether the injured person was a worker
  • which body parts were injured, and
  • the amount of compensation payable.
Workers Compensation Commission Rules 2011, practice directions and policies

The Workers Compensation Commission Rules 2011 (the Rules) provide operational direction to the Commission, covering matters of practice and procedure.

Practice directions complement the Rules by providing a more detailed explanation of the Commission’s procedures. There are 15 practice directions.

Commission policies set standards of practice and establish standards of behaviour for the Commission and the people who use the Commission’s services. Policies cover a wide range of issues from the general to the very specific. Examples include guidelines for media representatives, security at Commission hearings, access to compensation papers, policy on publication of decisions, requests for reconsideration under sections 329, 350 and 378 of the 1998 Act and the Arbitrator’s code of conduct.

The Commission’s conciliation/arbitration process

The Commission is an independent statutory tribunal in the NSW justice system. The legislative provisions establishing the Commission and setting out its functions and powers are contained in the 1998 Act.

The Commission has developed a dispute resolution model to implement the objectives of the 1998 Act incorporating a blend of informal negotiation and formal hearing. One of the features of the dispute resolution model is that the same Arbitrator conducts both the informal negotiation and, failing agreement, the formal hearing.

The dispute resolution model focuses on early exchange of information between the parties and conciliation to bring the parties to the dispute to a settlement acceptable to them. Arbitrators are required to use their best endeavours to bring the parties to a resolution (section 355 of the 1998 Act).

The following provides an overview of the legal dispute process – more detailed information is available on the Commission website and in the Commission videos.

The process
Preparation

After an Application to resolve a dispute is received, there is usually a Lodgement of a Reply by the respondent, and in some cases, a Response by the applicant.

Where the only issue in dispute is the degree of the permanent impairment or a dispute concerning whether any proposed treatment or service is reasonably necessary, the Registrar will refer these directly to an Approved Medical Specialist.

Resolution

At the telephone conference

The parties explore settlement with the assistance of the Arbitrator, and if possible reach agreement. If agreement is not reached, arrangements will be made for determination based on the documents or the matter will be scheduled for a conciliation/arbitration.

By determination on the papers

If the Arbitrator is satisfied that the matter can be determined without a face-to-face hearing, he/she will determine the matter on the basis of the documents lodged.

By conciliation

During the face-to-face conciliation phase of the conciliation conference/arbitration hearing, the Arbitrator will assist the parties to reach an agreed settlement.

By arbitration

If the matter is not settled as a result of the conciliation conference, the Arbitrator will determine the dispute by arbitration. The Arbitrator will either:

  • give an oral decision (ex tempore) and adequate reasons which will be recorded and subsequently be available if requested (Note - orders will be issued in written form), or
  • reserve the decision and advise the timeframe for delivery of the written decision and reasons.

The Commission's standard for the delivery of reserved decisions is 21 days following the completion of the evidence and submissions.

Arbitrator decisions are available on the Commission website in accordance with the Commission Policy on publication of decisions in the Workers Compensation Commission to ensure transparency, accountability, education and guidance to parties on all matters within the jurisdiction of the Commission.

The Commission operates under a presumption in favour of publication of decisions.

Finalisation

During this phase the Arbitrator, the parties and the Registry will take the action necessary to finalise proceedings. Finalisation will occur following:

  • determination
  • consent determinations made by the filing of terms or by oral agreement reduced to writing by the Arbitrator
  • determination by an Arbitrator (ex tempore or written)
  • striking out the proceedings
    • discontinuance
    • dismissal for want of due dispatch.

At any stage where the issues are resolved with the assistance of the Arbitrator, the Arbitrator will finalise the proceedings by preparing a statement of reasons for consent orders and/or directions.

Most disputes are finalised by way of a Certificate of Determination.

Fully informed and good faith participation in the Commission dispute resolution processes can help the timely and effective resolution of disputes. As far as practicable, insurers should ensure that a person with knowledge of the relevant matter, who holds appropriate delegation to make decisions and provide instructions to legal providers is either in attendance in-person or available by phone during the resolution process. See Insurer guidance GN 8.2 Insurer participation in disputes and mediations for more information.

Appeals from a decision of an Arbitrator

An appeal of an Arbitrator decision is made to a Presidential member (the President or a Deputy President).

Appeals from an Arbitrator’s decision are limited to the determination of whether a decision was or was not affected by errors of fact, law or discretion, and the correction of any such error. The appeal is not a review or new hearing (Practice Direction No 6 - Appeal against a decision of an Arbitrator).

Commission Practice Direction No 6 - Appeal against a decision of an Arbitrator sets out the practice and procedure of the Commission in relation to an appeal to a Presidential member against a decision of an Arbitrator under section 352 of the 1998 Act.

An appeal application will not proceed unless the Registrar is satisfied that it complies with the procedural requirements set out in section 352 of the 1998 Act, the Rules, the regulations and Practice Direction No 6.

In determining procedural compliance, the Registrar does not need to be satisfied of the merit of the substantive grounds of appeal.

Any appeal is made by application to the Registrar and must address the following threshold and preliminary matters:

Time

  • An appeal can only be made within 28 days after the making of the decision being appealed against (section 352(4) of the 1998 Act).
  • An Arbitrator’s decision is made when the Commission issues a Certificate of Determination.
  • Time to lodge an appeal commences to run on the day after the issuing of the Certificate of Determination.
  • An appeal is made when the appeal application is registered by the Registrar.
  • An appeal is registered when it is accepted by the Registrar and affixed with the seal of the Commission.
  • In exceptional circumstances, the Presidential member may extend the time for making an appeal.
  • If the appeal application is lodged in the Commission more than 28 days after the date of the decision appealed against, the appealing party must provide:
    • (a) the reasons why the appeal has been lodged out of time
    • (b) full details of the arguments in favour of granting an extension of time for the making of an appeal, and
    • (c) the demonstrable and substantial injustice that losing the right to appeal would allegedly cause.

(See Commission Practice Direction No 6 - Appeal against a decision of an Arbitrator.)

Monetary thresholds

  • An appeal must satisfy the monetary threshold requirements under section 352(3) of the 1998 Act.
  • The amount of compensation at issue on the appeal must be at least $5,000 and at least 20 per cent of the amount awarded in the decision appealed against.

Note: The filing of an application to appeal stays (that is, suspends) the operation of the decision appealed against, except a decision regarding weekly payments of compensation which must be paid despite the appeal (section 352(5A) of the 1998 Act).

Proceedings timetable

If the Registrar is satisfied that the appeal application complies with the relevant procedural requirements, a copy of the application will be returned to the filing party with the seal of the Commission and a ‘date registered’ stamp affixed to it, together with a direction outlining the timetable for the filing and serving of submissions and supporting documentation.

The Registrar will issue the parties with a copy of the transcript of arbitration proceedings and oral decision, if the matter was determined orally.

The respondent to the appeal has 28 days from being served with the application to file and serve its notice of opposition to the appeal.

On the papers

An appeal will be determined ‘on the papers’ without the need for a telephone conference or formal hearing, if the Presidential member determines there is sufficient information supplied in respect of the appeal (section 354(6) of the 1998 Act). Appeals are usually determined on the papers.

Fresh evidence/additional evidence

Fresh evidence, additional evidence or substituted evidence will only be accepted on appeal with the leave of the Presidential member (section 352(6) of the 1998 Act). Leave will not be granted unless the Presidential member is 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.
CHEP Australia Ltd v Strickland [2013] NSWCA 351

This was an appeal from a decision of a Presidential member of the Commission where the member had declined to admit further evidence in the form of doctor’s notes.

In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence would cause substantial injustice in the case. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.

[at para 27]

Determination of an appeal

An appeal against a decision of an Arbitrator is determined by a Presidential member.

The Presidential member may issue directions as to the future conduct of the appeal. This may include whether further submissions are required and/or whether the matter will proceed to a telephone conference and/or a hearing.

If the appeal is determined on the papers or the decision is reserved following hearing, the Registrar will advise the parties of the decision in writing as soon as practicable after it is made.

Where the Presidential member refuses to grant leave to appeal, the reasons for the decision will be given in writing.

Publication of decisions

In accordance with the Commission’s Policy on Publication of Decisions in the Workers Compensation Commission, all Presidential decisions will be published on AustLII,  BarNet JADE and LexisNexis, seven days from the date of the decision, unless an objection is raised.

Appeals from a decision of a Presidential member

If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member on a point of law (legal principles and statutory interpretation), the party may appeal to the NSW Court of Appeal.

Permission of the Court of Appeal must be sought to bring an appeal where the amount in dispute is less than $20,000 (as adjusted), or the dispute relates to costs, or is an appeal from an interlocutory (provisional) decision or an appeal made from a decision of the parties (section 353(4) of the 1998 Act).

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