Practice Direction No 11 - Permanent impairment disputes

1 January 2019

Commencement

1.    This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 and commences on 1 January 2019. It replaces Practice Direction No 11 ­– Process for Resolution of Permanent Impairment Disputes Lodged with the Commission, dated 8 September 2011.

Application

2.    This Practice Direction applies to disputed claims for permanent impairment as a result of an injury.

3.    It should be read in conjunction with any relevant and applicable workers compensation guidelines and regulations issued by the State Insurance Regulatory Authority (SIRA) and any relevant guidance material issued by the Commission.

Purpose

4.    The purpose of this Practice Direction is to set out the Commission’s practice and procedure for the resolution of disputes, concerning disputed claims for permanent impairment, lodged in the Commission.

Resolution of permanent impairment disputes

5.    A dispute for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:

(a) wholly disputes liability;

(b) makes an offer of settlement and one month has elapsed since the offer was made, or

(c) fails to determine the claim when required (s 289(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).

6.    A dispute cannot be referred for determination by the Commission unless it concerns matters previously notified as disputed. A matter has been previously notified as disputed if:

(a) notified in a notice of dispute under the 1998 Act or the Workers Compensation Act 1987 (the 1987 Act), or

(b) raised in writing between the parties before the dispute is referred for determination concerning an offer of settlement of a claim of lump sum compensation (s 289A of the 1998 Act).

7.    In limited circumstances, the Commission may exercise its discretion to allow previously unnotified issues in dispute to be raised where it is in the interests of justice to do so.

8.    The Registrar may refer a permanent impairment dispute for medical assessment under Part 7 of Chapter 7 of the 1998 Act and defer determination of the dispute by the Commission pending the outcome of the assessment (s 293 of the 1998 Act).

9.    There are two pathways for resolution of permanent impairment disputes:

(a) disputes regarding permanent impairment referred to an AMS, and

(b) disputes regarding permanent impairment referred to an Arbitrator.

Disputes regarding permanent impairment referred to an Approved Medical Specialist (AMS)

10.    The Commission may refer the dispute regarding permanent impairment to an AMS for the assessment of the degree of permanent impairment.

11.    If a dispute about the degree of permanent impairment is referred to an AMS, the parties may agree on the AMS who is to assess the dispute. The parties may advise the Registrar in writing of the name of the AMS they have agreed to appoint at the time of filing the application and/or reply or within seven days after the dispute is referred.

12.    If the parties have not agreed within seven days, the Registrar will choose the most appropriate AMS to conduct the assessment (s 321(2) of the 1998 Act).

13.    A worker’s injury may require more than one AMS to assess different body parts/systems and/or disorders.

14.    The parties will be issued with a copy of the referral to the AMS. A party must raise any deficiency with the referral in writing to the Registrar and the other party. The Registrar will resolve the issue.

15.    The AMS will assess the degree of permanent impairment, in respect of impairment of body parts/systems and/or disorders referred for assessment.

16.    The AMS will certify the assessment in a Medical Assessment Certificate, which will be issued to the parties. That assessment is conclusively presumed to be correct in accordance with s 326 of the 1998 Act.

17.    A party may appeal against a Medical Assessment Certificate pursuant to s 327 of the 1998 Act, by lodging a Form 10 – Application to Appeal Against a Decision of an Approved Medical Specialist. Refer to the Registrar’s Guideline – Appeal Against Medical Assessment for further information.

18.    After the expiration of 28 days, being the time period to lodge an appeal, the dispute will be:

(a) finalised by issue of a Certificate of Determination where the only issue in dispute is permanent impairment compensation;

(b) determined by issue of a Certificate of Determination, with liberty to restore, where the only issues in dispute are permanent impairment and pain and suffering under s 67 of the 1987 Act, or

(c) referred for teleconference before an Arbitrator where there are other issues in dispute.

19.    Parties may lodge consent orders at any time resolving the dispute.

Disputes regarding permanent impairment referred to an Arbitrator

20.    A liability dispute in relation to a claim for permanent impairment compensation should be resolved either by agreement between the parties or determined by an Arbitrator before the degree of permanent impairment is assessed.

21.    If an agreement is reached between the parties in relation to the worker’s degree of permanent impairment:

(a) the parties may lodge in the Commission consent orders reflecting the agreement;

(b) the applicant may discontinue the proceedings before the Commission and the parties enter may into a Complying Agreement under s 66A of the 1987 Act, or

(c) the Arbitrator may issue a Certificate of Determination by consent.

22.    The determination by the Commission is an assessment of permanent impairment for the purposes of s 322A of the 1998 Act.

23.    A dispute in relation to the degree of permanent impairment may be referred to an Arbitrator for conciliation, in appropriate circumstances. If the matter remains unresolved, an Arbitrator may determine the dispute in accordance with the evidence. Alternatively, the Arbitrator may refer the matter to an AMS for assessment.

24.    A party may appeal a decision of an Arbitrator in respect of permanent impairment to a Presidential member. On appeal, the decision may be:

(a) confirmed, or

(b) revoked and

• a new decision made in its place, or
• remitted back to the Arbitrator (or another Arbitrator) for determination in accordance with any decision of the President. This may include a direction that the matter is referred for assessment by an AMS under s 352(7) of the 1998 Act.

Michael Snell

Acting President