Level 4, 1 Oxford Street, Darlinghurst NSW 2010 T: 13 9476 [email protected] www.wiro.nsw.gov.au MEMORANDUM ABOUT WORKERS COMPENSATION COMMISSION JURISDICTION IN DISPUTES ABOUT WEEKLY PAYMENTS [1] There is a fundamental change in the determination of entitlement to compensation for a workplace injury by way of weekly payments. The jurisdiction of the Workers Compensation Commission (WCC) to award an injured worker weekly payments have been significantly reduced. [2] In claims made on or after 1 October 2012, an insurer has made a work capacity decision when it agrees to pay an injured worker weekly compensation. The WCC has no jurisdiction to determine any dispute about a work capacity decision or make a decision in respect of a dispute that is inconsistent with a work capacity decision of an insurer1. [3] The limits to the jurisdiction of the WCC introduced by the 2012 amendments do not immediately affect claims made before 1 October 2012 where the injured worker was in receipt of weekly payments immediately before that date. That is because that worker is an “existing recipient” of weekly payments. The limits to the WCC’s jurisdiction do not apply to existing recipients until they are properly transitioned by the insurer making a work capacity decision2. [4] The limits to the jurisdiction of the WCC introduced by the 2012 amendments are set out in Section 43(3) and Section 44(5) of the 1987 Act. Both limitations apply only when a work capacity decision has been made. Where a work capacity decision has not been made, the WCC’s jurisdiction is unaffected by the amendments. [5] However, even the existence of a work capacity decision does not completely deprive the WCC of its jurisdiction in relation to weekly payments. Under Section 43(3), the WCC cannot “determine any dispute about a work capacity decision or make a decision in respect of a dispute that is inconsistent with a work capacity decision of an insurer”. This restriction does not prevent the WCC from making a decision on liability for weekly payments (which is not a work capacity decision)3. Further, the WCC could theoretically make an award for weekly payments, as long as the award was not inconsistent with a work capacity decision. However, this award could be made obsolete by the insurer making a work capacity decision the following day. 1 Section 43(3) of the 1987 Act Schedule 8, Clause 22 of the 2010 Regulation 3 Section 43(2)(a) of the 1987 Act 2 Level 4, 1 Oxford Street, Darlinghurst NSW 2010 T: 13 9476 [email protected] www.wiro.nsw.gov.au [6] The other restriction on the WCC’s jurisdiction made by the 2012 amendments is set out in Section 44(5) of the 1987 Act. The WCC cannot “make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section”. [7] In the case of Sok, the Court of Appeal confirmed that position. The Court held that the WCC had jurisdiction to make an award because the insurer had never made a work capacity decision, the worker had not received any weekly payments compensation for a claim made on or after 1 October 20124 and the insurer had issued a denial of liability for weekly payments. A decision to dispute liability for weekly payments is not a work capacity decision5. Therefore, since the insurer had not made a work capacity decision the WCC could determine the quantum of weekly benefits. [8] As long as a work capacity decision has not been made, the WCC retains jurisdiction to determine weekly payments for claims made before 1 October 2012 where the worker was not in receipt of weekly payments immediately before that date. The jurisdiction is not restricted for as long as a work capacity decision is not made6. [9] The WCC has limited jurisdiction with respect to weekly payments under section 38. That is in respect of the period after the worker has received 130 weeks of weekly payments. To determine a worker’s entitlement to weekly payments under Section 38, the insurer is compelled to make a work capacity assessment7. KA Garling 11 September 2014 4 The worker had received weekly payments prior to 1 October 2012. See Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 at paragraph 7 5 Section 43(2)(a) of the 1987 Act. See discussion in Sok at paragraphs 52 - 58 6 Hence the decision in Sok 7 Section 38 of the 1987 Act. See also Sok at paragraph 60
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