GN 8.2 Insurer participation in disputes and mediations

Published: 12 August 2019
Last edited: 17 April 2020

Application: This guidance applies to exempt workers

Overview

The insurer is required to make all reasonable efforts to genuinely participate in teleconferences, conciliations/arbitrations and common law mediations in the Workers Compensation Commission (the Commission).

This guidance outlines why genuine participation is important and how this may be achieved.

S22. Insurer participation in disputes and mediations
Principle
All parties will participate in Commission teleconferences, conciliations/arbitrations and mediations in good faith and with a view to achieving the timely and effective resolution of disputes.

Why ‘genuine participation’ is important

The Commission resolves workers compensation disputes between workers, employers and insurers across New South Wales. The Commission is an independent statutory tribunal within the state’s justice system, committed to providing a transparent and independent dispute resolution service. Resolving disputes in the shortest time frame is a priority for the Commission.

The objectives of the Commission, as required by section 367 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) include providing a fair and cost-effective system for the resolution of disputes under the Workers Compensation Acts, providing an independent resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts and establishing effective communication and liaison with interested parties concerning the role of the Commission.

The parties to a dispute under the Act or a damages mediation are the worker and the employer. The insurer represents the employer through the principles of subrogation. It is expected that the worker attends the Commission in person and they generally do. However, insurer participation at the Commission can be intermittent.

The Commission has produced a number of short videos describing what to expect in the various types of dispute at the Commission. These videos will assist workers and others to better understand Commission processes.

Note: Government insurers and the Nominal Insurer are required to be model litigants, and all other insurers are encouraged to be model litigants. A practical example of this is to accord the worker due respect by genuinely participating in any proceedings in the Commission.

Genuine participation by insurers is aided by the in-person attendance of the case manager (or other insurer representative) with knowledge of the matter and appropriate delegation to provide instructions.

Where there is no insurer representative present, matters are delayed while the legal representative gets instructions. It can be difficult and time-consuming to represent the precise nature of the proceedings over the phone, and repeated delays can prolong matters and interrupt the flow of the proceedings.

There are benefits to insurers when they attend Commission matters in-person including:

  • building case manager capability
  • allowing for better oversight of legal providers
  • potentially removing the need to instruct lawyers in non-complex matters
  • reducing delay in the running of matters at the Commission, and
  • sending a message to the worker that the insurer takes their claim seriously.

When attendance in-person is not possible

Note: Please refer to the Workers Compensation Commission website for the latest information on operational arrangements in place during the COVID-19 (Coronavirus) pandemic.

There will be situations where in-person attendance is not practicable for insurers. In these circumstances, a person with knowledge of the matter, who holds the appropriate delegation, and is sufficiently experienced to give instructions, including instructions on settlement, should be available by telephone.

It is important that the nominated person is available to give their full attention to the matter, ensuring privacy for any discussions without distraction. The nominated person should be able to access the claim file if needed.

Conduct during Commission proceedings

The Commission’s Standards of Conduct during proceedings in the Workers Compensation Commission states that those appearing in Commission matters are expected to:

  • in presenting their party's case, adhere to that party's instructions, prior to and during proceedings
  • honestly represent the party to the proceedings. That is, not knowingly put forward any information that is untrue, or assist or encourage a party to do anything which is dishonest, or misrepresents known facts
  • be knowledgeable about, and comply with, the relevant workers compensation legislation, the Commission's Rules, Practice Directions, and Guidelines, and the usual practices and procedures of the Commission
  • behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the Arbitrator, and to Commission staff
  • not engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process
  • not engage in direct or indirect discriminatory conduct towards or in relation to any other person, including parties or representatives.
Email