Dispute resolution in the Commission

Published: 12 August 2019
Last edited: 17 April 2020

The Workers Compensation Commission (the Commission) is an independent tribunal that helps resolve workers compensation disputes between workers and insurers. The Commission has jurisdiction to examine, hear and determine all matters arising under the NSW Workers Compensation Acts.

The Commission deals with disputed claims for compensation including:

  • weekly compensation payments (including liability and work capacity)
  • medical expenses compensation
  • permanent impairment compensation
  • compensation to dependants of deceased workers
  • registration of commutation agreements
  • injury management
  • permanent impairment threshold assessments
  • mediations for work injury damages claims
  • questions of law
  • legal costs.

Note: the Commission will provide an interpreter if a worker requires, at no cost to the worker.

Structure of the Commission

The diagram below details the structure of the Commission:

Diagram showing structure of the Workers Compensation Commission. List includes arbitrator, presidential member, registrar, approved medical specialist, medical appeal panel, and mediator.

President and Deputy Presidents

The President works with the Registrar in a strategic leadership role. The President is responsible for general control and direction of the Deputy Presidents and the Registrar.

Presidential members hear appeals in relation to errors of fact, law or discretion against decisions made by Arbitrators. The President is responsible for determining novel or complex questions of law, and applications to strike out pre-filing statements in work injury damages matters.

Appeals against Presidential decisions are heard in the NSW Court of Appeal.

Registrar

The Registrar manages the Commission’s operations. He/she is responsible for the general direction and management of Commission staff, Arbitrators, mediators and approved medical specialists.

The Registrar may also exercise all the functions of an Arbitrator.

Arbitrator

An Arbitrator is an independent decision-maker who has a strong understanding of the workers compensation system. They have extensive experience in dispute resolution and are trained to conduct fair proceedings.

Arbitrators encourage all the parties to a dispute to come to an agreement. Where an agreement cannot be reached, the Arbitrator will issue a binding decision.

Disputes in the Commission

Unresolved workers compensation disputes can be brought to the Commission for resolution or determination.

Disputes regarding the degree of permanent impairment may be referred to an approved medical specialist for medical assessment. In some limited circumstances, disputes regarding the degree of permanent impairment may be determined by an Arbitrator.

Most other claims, such as weekly benefits compensation, medical expenses, or where liability is disputed in relation to a claim for permanent impairment, will be referred to an Arbitrator.

The process

The process for resolving a dispute depends on the type of claim being disputed.

Most disputes regarding liability for payment of compensation are referred to an Arbitrator.

The following disputes may be referred to a delegate of the Registrar under the expedited assessment provisions:

  • disputes regarding less than 12 weeks of weekly benefits compensation
  • disputes about past medical expenses up to $9,389.00 (as indexed), or
  • disputes about work capacity decisions only.

The Registrar may refer claims for lump sum compensation, where the only issue in dispute is the degree of permanent impairment, directly to an approved medical specialist for medical assessment.

If a dispute is referred to an Arbitrator, it will involve a teleconference (see ‘Teleconference’ below).

If the dispute is not settled after the teleconference, a conciliation conference and/or arbitration hearing may take place.

Arbitrators are trained to conduct Commission proceedings in a way that is fair to all parties. At every stage of the process, Arbitrators encourage and help parties to resolve their dispute. However, if parties fail to resolve their dispute, the Arbitrator will determine the dispute outcome.

The Commission has published a short video overview on what to expect when you attend the Commission.

Note: Due to the COVID-19 (Coronavirus) pandemic, changes have been made to the Workers Compensation Commission’s operations. Please refer to the Commission’s website for the latest information on operational arrangements.

Teleconference

The purpose of the teleconference (telephone conference) is:

  • to explore resolution of the dispute
  • to ensure parties understand the nature of the proceedings, and to explain any aspect of the dispute resolution procedure
  • where all issues are settled, to determine how the matter can be finalised, and
  • where the issues are not settled, to identify the remaining issues and ensure that the matter is ready to proceed to the next phase.

The teleconference is intended to resolve some or all the issues in the dispute notice. Matters that have not been previously notified will only be dealt with if it is in the interest of justice to do so.

During the teleconference, the Arbitrator will:

  • encourage participation by the parties
  • define the issues and establish what is not in dispute
  • establish the compensation at issue
  • explore the likelihood of settlement and options to resolve the dispute
  • ensure all parties understand the process
  • identify any legal or threshold issues that must be decided
  • identify any recent developments that may not be reflected in the documents.

The Arbitrator will help the parties to narrow the dispute by identifying:

  • the positions of the parties on the issues in dispute
  • strengths and weaknesses
  • barriers to agreement and ways to overcome them
  • practical solutions.

If the issues are not resolved by agreement, the Arbitrator may:

  • hear submissions and give a decision
  • make directions for submissions and other action
  • list the matter for conciliation/arbitration (see ‘Conciliation and arbitration’ below).

The Commission has published a short video of what to expect at a teleconference with the Commission.

Determination on the papers

If the Arbitrator cannot bring the parties to agreement during the teleconference, they may decide that the dispute can be determined on the basis of the documents provided.

This is called a 'determination on the papers' and can happen after the dispute has been discussed with all parties and their views have been noted at the teleconference.

Conciliation and arbitration

Conciliation

Where the dispute does not resolve at the teleconference, the Arbitrator will arrange a face-to-face meeting for the parties. This is called a conciliation.

The conciliation may include:

  • a summary of the dispute
  • discussion of the issues
  • finding a solution
  • negotiating an outcome.

Arbitration

Where the matter does not resolve at the conciliation conference, it will proceed to an arbitration hearing, usually on the same day. The arbitration hearings are recorded and open to the public.

The Arbitrator will:

  • put on the record any agreed facts or issues
  • put on the record the issues that must be determined
  • record the documentary evidence
  • deal with any application to take oral evidence
  • invite the legal representatives to make submissions on the evidence and the law in respect of the outstanding issues.

The Arbitrator will make a legally binding decision about the dispute.

A written decision called the ‘Certificate of determination’ will be sent to the parties approximately 21 days after the conciliation/arbitration conference.

The Commission has published a short video on what to expect when you attend a conciliation or arbitration hearing at the Commission.

Application for expedited assessment

The following disputes are expedited (fast-tracked) to a teleconference with a delegate of the Registrar:

  • disputes for work capacity decisions
  • those regarding weekly compensation benefits up to 12 weeks, and/or
  • medical expenses compensation up to $9,389.00 (or interim payment direction amount, as indexed in the Workers compensation benefits guide).

If a dispute is not resolved at the teleconference, the delegate will issue a binding decision.

The Commission provides further information on expedited assessment pathways on its website.

Workplace injury management disputes

A workplace injury management dispute is a dispute about the activities and procedures undertaken to achieve a timely and safe return to work.

Applications can be made to resolve disputes where:

  • there is no injury management plan, or it has not been followed
  • there is no return to work plan, or it has not been followed, or is disputed
  • suitable duties have not been provided for the worker
  • the worker's capacity to perform suitable duties is disputed
  • whether the worker is making reasonable efforts to return to work in suitable employment
  • the worker’s request for vocational retraining has not been provided
  • issues regarding the nominated treating doctor, including failure to nominate a treating doctor, changing the nominated treating doctor, and the provision of relevant information by the nominated treating doctor at the worker’s authorisation.

Anyone involved in an injury management dispute (for example, worker, a worker's representative, an employer or an insurer) can lodge an application with the Commission. Applications can only be made after the worker has made a claim to the employer and/or insurer involved.

The Commission has published a short video on how the commission assists in settling workplace injury management disputes.

Medical disputes

A dispute regarding a worker’s condition, fitness for employment and degree of permanent impairment may be resolved through the Commission's medical disputes pathway.

Where a worker is not satisfied with an insurer’s decision on the assessed degree of permanent impairment, they can lodge an application to the Commission to have the degree of permanent impairment assessed.

In some limited circumstances, an Arbitrator may be able to resolve the parties’ differences and make an award for permanent impairment. In most situations, the matter will be referred to an approved medical specialist for an assessment.

Note: For the purpose of section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), a determination by an arbitrator is ‘one assessment’.

Approved medical specialist

The Workers Compensation Commission uses independent medical specialists, called approved medical specialists, to assess workers when the dispute involves a medical issue. Approved medical specialists are appointed by the President of the Commission and are independent of the parties to a dispute.

Medical assessments can include:

  • assessment of the degree of permanent impairment
  • assessment of the worker’s condition or fitness for employment.

The Commission will allocate a medical dispute to an approved medical specialist to conduct the assessment and provide a medical assessment certificate. The certificate will provide the assessed degree of permanent impairment.

An approved medical specialist may examine the worker by video consultation as an alternative to a face-to-face consultation in limited circumstances. For example, assessment of a psychological injury where a worker is situated in a rural or remote location.

The Commission has published a short video on what to expect in the medical assessment process with the Commission.

Appeals and reconsiderations

Decisions made by the Commission may be appealed or reconsidered.

Refer to the Commission's website for further information.

The Independent Legal Assistance and Review Service (ILARS) can pay a worker’s legal and associated costs of making a claim for compensation. This includes paying for legal costs, medical reports and reasonably necessary incidental expenses.

See 'Workers Compensation Independent Review Office' for further information.

ILARS does not fund legal assistance for exempt worker claims. As these workers are exempt from the 2012 amendments to the workers compensation Acts they are unable to access the ILARS for legal assistance. The Commission can order the employer to pay the worker's costs in an exempt worker case.

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