Worker Compensation claims

Overview on the basics of what this is but more of a focus on latest changes in legislation and types of cases or even brief case examples.

The Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001 came into force in 2002.

The purpose of the new legislation has been to reduce disputes, particularly with regard to costs. The Workers Compensation Court has therefore been superseded with the Workers Compensation Commission. The Court now only has a role with its existing claims. The Workers Compensation Resolution Service subject to the ability to transfer existing claims to the new procedures may also conciliate existing claims.

The establishment of the Commission signifies a change from a traditional judicial model of dispute resolution to more of an administrative representation. The Commission has been described as a type of tribunal that is made up of a President, two Deputy Presidents, a Registrar, Arbitrators and Approved Medical Specialists.

The State Government has explained the introduction of the reforms to achieve a straightforward, uncomplicated and “faster” Workers Compensation Scheme.

Proceedings before the Commission should be conducted with little formality and it is not bound by the rules of evidence. Proceedings may therefore be conducted by conference between the parties, by telephone or other means. In some cases, a formal hearing will take place. An Arbitrator is required to encourage both parties to settle a matter prior to determining a dispute.

Nevertheless, the Commission is required to carry on justly and in accordance with the law. It is answerable under the law, as are other tribunals and courts.

Any person to a workers compensation matter may apply to the Commission but for disputes regarding permanent impairment. In those cases, only the injured worker or their legal representative may make an application.

The Registrar of the Commission has the capacity to order the interim payment of weekly benefits for up to twelve weeks, payment of reasonably necessary medical treatment and to recommend action to rectify a contravention of the injury management provisions of the Workplace Injury Management and Workers Compensation Act 1998.

An approved medical specialist will assess medical issues that are disputed. An Arbitrator determines disputes about workers compensation. These decisions are appealable subject to questions of law with respect to a determination by an Arbitrator.

It should be mentioned that a party may only appeal a determination made by the Commission when leave is granted. The Commission will not grant leave unless the amount of compensation at issue on the appeal is both at least $5,000 (otherwise prescribed by regulation) and at least 20% of the amount awarded in the decision appealed against.

The Commission may also consider claims made for common law damages against an employer in cases where workers compensation is payable. The worker has the option of having their matter heard in the Commission before proceeding to the District or Supreme Court.

Workers and Employers are still entitled to legal representation in the Commission. However if a worker does not have representation the insurer will not be entitled to a representative. Legal representatives who are found to cause delay in the determination of a matter are now subject to cost penalties. Insurers who fail to make decisions on claims within the newly prescribed time frames are also subject to cost penalties. This includes requirements to pay administrative fees where the Commission handles disputes.

Entitlements to lump sum compensation for non-economic loss are now based on the degree of permanent impairment suffered, and amendments have been made to the threshold for entitlement to lump sum compensation for pain and suffering. This is opposed to referring to the Table of Disabilities in the Workers Compensation Act 1987. An award should not be made for permanent impairment or pain and suffering unless an approved medical specialist has made an assessment. An assessment of a medical dispute by an approved medical specialist will therefore be decisive as to the degree of permanent impairment, proportion of impairment due to previous injury, extent of loss of hearing (if relevant) and whether the impairment is in fact permanent.

The WorkCover Authority continues to provide claims assistance to workers, employers and insurers and lump sum compensation for weekly benefits may still be commuted. This is where a worker can opt to take a lump sum payment rather than a weekly “pension” from the insurer. This is subject to certain restrictions imposed by the new legislation.

The treatment of hearing loss claims is generally maintained in accordance with the Workers Compensation Act 1987. There are minor amendments however to reflect that compensation will now be attributed in regards to the degree of permanent impairment resulting from the loss of hearing. Therefore the ultimate entitlement of workers making a claim for industrial deafness will be subject to having their hearing loss dealt with a “whole body measure” of permanent impairment.

The introduction of the new Workers Compensation scheme is aimed at processing workers entitlements more expediently. It has been discussed that there is an incentive for both parties to quickly settle matters with respect to the introduced cost sanctions to those that delay the process or do not abide by certain time limits imposed. In addition, an “informal atmosphere” for the settlement of disputes has been established, where the Arbitrators are encouraged to resolve matters before they proceed to determination.

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