Procedural Direction WC2 – Interim payment directions

Introduction

1.    This Procedural Direction concerns matters commenced for an interim payment direction of weekly payments of compensation or medical expenses compensation.

2.    These types of proceedings fall within the expedited assessment provisions of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and are designed to be quick, informal, and cost-effective. If your dispute falls within the jurisdictional limit contained in section 297 of the 1998 Act, it must be commenced as an expedited assessment.

Preliminary

3.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

4.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

5.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

6.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules2021 (the PIC Rules).

Applicable legislation and rules

7.    Parties should be familiar with the following provisions:

(a)   Part 5 of Ch 7 of the 1998 Act, and

(b)   Rule 79 of the PIC Rules.

Types of disputes

8.    Interim payment directions may be issued for:

(a)   past and future weekly payments of compensation, and/or

(b)   past medical expenses.

9.    For weekly payments of compensation, an interim payment direction may be issued for a period of up to 12 weeks. If the period is in the past, this direction cannot exceed 10 weeks. However, the President may deal with disputes for past periods of up to 12 weeks, instead of the Commission, under section 304B of the 1998 Act.

10.  For medical expenses compensation, an interim payment direction may be issued for expenses already incurred of up to $9,669.20. This amount is adjusted on 1 April and 1 October each year. For the current adjusted amount, refer to the Workers compensation benefits guide issued by the State Insurance Regulatory Authority.

11.  The following disputes cannot be resolved via interim payment direction, and should be commenced via Application to Resolve a Dispute:

(a)   weekly payments of compensation for a period in excess of 12 weeks (unless the dispute is solely a work capacity dispute), and

(b)   future medical expenses for proposed medical treatment and services under section 60(5) of Workers Compensation Act 1987 (the 1987 Act).

12.  The parties to proceedings concerning an interim payment direction have a duty to cooperate with the Commission and to give effect to the objects of the PIC Act and the guiding principles, which include to resolve the real issues in the proceedings justly, quickly, cost effectively and with as little formality as possible (ss 3 and 42 of the PIC Act).

Making an application

13.  Proceedings are commenced by lodging an Application for Expedited Assessment in the Commission. Applications can only be lodged through the Commission’s online portal. An unsealed copy of the Application must also be served on the insurer at the same time.

14.  An Application must include an email address for service of the reply.

15.  An Application must attach all relevant supporting documents on which the applicant intends to rely. The attachments must be indexed and paginated. Documents attached should assist the resolution of the dispute and provide evidentiary support for the application. Relevant documents may include:

(a)   statement prepared by the worker, addressing the circumstances and consequences of the injury;

(b)   claim forms;

(c)   dispute notices;

(d)   relevant correspondence, including correspondence concerning pre-injury average weekly earnings;

(e)   list of payments;

(f)   factual investigation reports;

(g)   medical reports from the worker’s treating doctor concerning the injury;

(h)   medical reports from a forensic medical expert that address relevant sections of the enabling legislation, including sections 4, 9A, 11A, 33, and 60 of the 1987 Act;

(i)   clinical notes from the worker’s treating medical and health practitioners;

(j)   medical certificates from the worker’s treating medical and health practitioners;

(k)  work capacity decisions;

(l)   a schedule of medical expenses, which sets out the cost of any treatment received;

(m) accounts/receipts for claimed medical expenses;

(n)  financial records:

1. wages;
2. pay slips;
3. tax returns, and
4. award information.

(o)  injury management plans, return to work plans, and treatment plans provided by healthcare providers, and

(p)  any other relevant information on which the applicant wishes to rely.

16.  It is important that you attach all relevant information to the application as the proceedings are expedited and late documents will generally not be admitted.

17.  Applications should be prepared in a way that assists all parties and the Commission to efficiently resolve the dispute, including but not limited to:

(a)   providing clear, legible copies of all documents;

(b)   not including duplicate documents;

(c)   not attaching irrelevant or unrelated material, and

(d)   indexing documents in a logical, coherent way.

Responding to an application

18.  To respond to the Application, the employer or employer’s insurer may lodge a Reply to the Application for Expedited Assessment in the Commission. Replies can only be lodged through the Commission’s online portal.

19.  A copy of the unsealed Reply must be served on the applicant, no later than three working days before the date of the online conference. The Reply should be served in a manner that allows sufficient time for service to be achieved before the above timeframe.

20.  You must attach all relevant documentation that provides evidentiary support in response to the claim to the Reply, which must be indexed and paginated. It is not necessary to provide documentation which is already attached to the application. Relevant documents may include those listed above (at [15]). If available, an updated schedule of any weekly and/or medical expense payments made should be attached.

21.  Where the respondent disputes quantification of the worker’s entitlement to weekly compensation, a wages schedule must be prepared.

Conduct of proceedings

22.  The dispute will be referred to a member, a registrar, or the President for resolution. The President delegates this function to a member of staff. On registration of an application, the dispute will be listed for an online conference, via audio or audio-visual link, usually within 14 days.

23.  However, if the delegate is satisfied that sufficient information has been supplied in connection with the application, they may determine the application without holding an online conference.

24.  The Commission will inform the parties of the date and time of the online conference after registration of the Application. It is expected that the following parties will be available to participate in the online conference:

(a)   the worker;

(b)   the worker’s legal or union representative (where appointed);

(c)   the insurer’s claims officer, and

(d)   the insurer’s legal representative (where appointed).

25.  If the worker is unrepresented, an insurer legal representative is only entitled to appear with leave of the Commission (s 48 of the PIC Act). In such circumstances, the online conference will be sound recorded.

26.  An employer representative may also participate in the online conference. A request to participate should be made to the Commission prior to the online conference to ensure that all parties are joined and proceedings are not delayed.

27.  It is expected that parties will have had preliminary discussions with each other regarding resolution of the dispute prior to the online conference.

28.  Section 297 of the 1998 Act contains rebuttable presumptions in favour of the worker. The delegate will have regard to those presumptions. The absence of a presumption in favour does not limit the circumstances in which an interim payment direction may be issued, nor remove the jurisdiction of the Commission to deal with the dispute.

Resolving the dispute

29.  At the online conference, the delegate will determine the appropriate way to resolve the dispute. The delegate will attempt to bring the parties to an agreed resolution of the dispute.

30.  The online conference is an opportunity for the parties to canvass all relevant issues, clarify the scope of the dispute, and resolve the matter without the need for a formal determination. Parties should be prepared to enter into genuine settlement discussions during the online conference.

31.  If the parties agree to resolve the dispute, the Commission will issue a consent interim payment direction shortly after the conclusion of the online conference.

32.  If the dispute does not resolve, the delegate will give the parties an opportunity to provide submissions with reference to relevant evidence in support of their respective positions. Before determining the dispute or issuing a decision, the delegate:

(a)   will consider the information contained in the application and reply;

(b)   will consider the submissions of all parties;

(c)   may request additional information from any party, or

(d)   may require further documents to be lodged and served.

33.  The delegate may determine the dispute and provide oral reasons during the online conference or determine the dispute in writing with reasons at a later date. In such matters an interim payment direction will be issued detailing the outcome of the application.

34.  Conditions may be imposed on any interim payment direction. The conditions may include a requirement that the worker submit medical certificates certifying the period of incapacity. In determining whether conditions should be imposed, the delegate will consider the objectives of the Commission and the overall objectives of the workers compensation system.

Revocation of an interim payment direction

35.  The President may revoke an interim payment direction on application of a party or on the President’s own motion (s 299 of the 1998 Act). An application to revoke an interim payment direction is made by filing an Application to Revoke an Interim Payment Direction through the Commission’s online portal.

36.  If an interim payment direction is revoked, the obligation to make payments under the direction ceases, but this does not affect the requirement to make payments due before the revocation. The President may also amend or reissue an interim payment direction.