5
ANNUAL REPORT
OF
THE WORKERS
REHABILITATION
AND COMPENSATION
TRIBUNAL
FINANCIAL YEAR
2007 / 2008
1. THE REHABILITATION AND COMPENSATION TRIBUNAL
The Tribunal is constituted by the Chief Commissioner, a Commissioner or a Part-Time Commissioner. Presently the Tribunal has one Commissioner in addition to the Chief Commissioner.
Both the Chief Commissioner and Commissioner fulfil the requirements of the Act in that they are legal practitioners of not less than 5 years standing. Both are appointed, full-time, on contracts for a period of 5 years.
The functions of the Tribunal are as follows:-
· To determine all claims for compensation referred to it under the Act.
· To determine such other matters as are referred to it under the Act.
· To exercise the powers conferred and the duties imposed on it in the Act.
· To hear and determine any appeal referred to it under the Workers (Occupational Diseases) Relief Fund Act 1954.
2. DISPUTE RESOLUTION
There were 713 referrals made to the Tribunal during the 2007/2008 financial year. The total number of matters resolved by the Tribunal during this period was 677. All matters referred to the Tribunal (save for a referral pursuant to s81A)[1] must undertake a conciliation process.
The conciliation process is divided into two stages. The first or preliminary stage is conducted by telephone with the parties, the purpose being to:-
· Identify the issues in dispute.
· Ensure that any necessary investigations or medical examinations are arranged.
· Determine the necessary steps for each party to take in order to resolve the claim.
· Discuss the claim generally and to obtain concessions from the parties as to fact, law or procedure where possible.
· Where a settlement of the claim is not possible, to discuss the claim in preparation for a conciliation conference.
· Discuss any other matter that may be relevant to achieving a speedy resolution of the claim.
Once it is determined that the parties have completed any necessary investigations and medical examinations and are in all respects ready to proceed further, the matter proceeds to the second stage, the conciliation conference. This is a face to face meeting involving all of the parties in an open and "without prejudice" discussion based upon all available information in order to facilitate a resolution of the claim. The conciliator may be a Commissioner, Registrar or Deputy Registrar.
If a claim is unresolved at the conclusion of the conciliation process, the conciliator is to certify that the claim proceed to an arbitrated hearing. An arbitrated hearing is held before the Chief Commissioner or Commissioner, such person having not been involved as the conciliator in respect of that claim. The Act provides that the Tribunal:-
· Is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit, and
· The proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of matters to be resolved permit.
However this does not displace the obligation to afford procedural fairness to the parties and ensure that the principles of natural justice are upheld.
Although the initial intent of the framers of the Act may have been to have an informal and non-adversarial system, the harsh realities are that many workers compensation matters involve complicated determinations of law, findings of fact (sometimes in circumstances where disputed facts are aggressively contested) and the weighting of expert medical opinion. Given the significant value of the entitlements which are the subject of workers compensation disputes, the parties not surprisingly require determinations which are transparent and in accordance with the law. The Tribunal hearings therefore remain as an adversarial model rather than inquisitorial, but the Tribunal can be expected to be less formal and more flexible in relation to proceedings and the adducing of evidence than a court of law. However applications or endeavours to stray from the generally accepted rules of evidence or procedure are likely to be closely scrutinised where there is a prospect that the other party will be prejudiced or where justice would be unlikely to be served by such request.
All determinations of the Tribunal (except in respect of those s81A referrals that are determined at the time of hearing) are in writing, are provided to the parties and are published on the Tribunal website at www.workerscomp.tas.gov.au.
Any party to a proceeding before the Tribunal, aggrieved by any determination, order, ruling or direction of the Tribunal in point of law may appeal to the Supreme Court of Tasmania.
3. TRIBUNAL ACCOMMODATION
The Tribunal Registry and main premises are at Level 4, 169 Liverpool Street, Hobart containing two hearing rooms, two conciliation rooms, meeting rooms and Tribunal office accommodation. In Launceston the Tribunal occupies premises on the corner of Brisbane and St Johns Streets consisting of a hearing room, conference room, meeting rooms and an office for Tribunal staff use. The Tribunal does not have any staff located outside Hobart.
There are video conference facilities at the premises in Hobart and Launceston. The Tribunal has continued to use the Ulverstone Magistrates Court which has now been refurbished and used by the Industrial Relations Commission of Tasmania. The continued use of this facility is part of a co-operative arrangement the Tribunal has with the Industrial Relations Commission of Tasmania with the Commission using the Tribunal's premises in Launceston. The Tribunal continues to use a conference room located at the Workplace Standards Authority offices at Reece House in Burnie. In particular these premises, together with the video conference facility they provide are used in respect of s81A referrals in order to relieve parties of the obligation to travel from Launceston or Hobart in order to attend such hearings.
4. TRIBUNAL ACTIVITIES
The number of referrals lodged was 713 which is an increase from 630 in the previous financial year.
The low number of Referrals to the Tribunal and the continued high rate of resolution at Conciliation have allowed the Chief Commissioner and Commissioner to assist the Department of Justice in the administration of justice in other areas. Both the Chief Commissioner and Commissioner have been appointed Magistrates, Coroners and Members of the Motor Accidents Compensation Tribunal. In addition the Chief Commissioner is appointed as a Commissioner pursuant to the Victims of Crime Assistance Act 1976.
Arrangements now in place with the Magistrates Court of Tasmania provides that the Tribunal in effect performs the role of the Motor Accidents Compensation Tribunal. There are significant community benefits from this arrangement. It places like matters in the same Tribunal specialising in the determination of statutory entitlements in a "no fault" accident situation and relieves some degree of work pressure from the Magistrates Court. Matters are able to be dealt with State wide with minimum delay as part of the ongoing travel arrangements of both Commissioners. The work as the Motor Accidents Compensation Tribunal is performed parallel and complementary to the work of the Workers Rehabilitation and Compensation Tribunal and provides no adverse impact on the primary work of the Workers Rehabilitation and Compensation Tribunal. The performance of these other roles by the Chief Commissioner and Commissioner is secondary to their primary role in dispute resolution under the Workers Rehabilitation and Compensation Act 1988. As such time is committed to these other roles in circumstances where it provides no prejudice to the speedy resolution of matters within the Tribunal. A fee for services is returned to the Tribunal budget from the Department of Justice for this work and accordingly the cost of operating the Tribunal is reduced which is a benefit to the workers compensation system in Tasmania.
5. APPEALS TO THE SUPREME COURT OF TASMANIA
During the financial year 2007/2008 financial year there were 3 determinations of the Tribunal referred on appeal to the Supreme Court of Tasmania. Two were dismissed and one upheld.
6. REVIEW OF LEGISLATION
The Chief Commissioner is a member of the Legislative Review Advisory Committee established to provide advice to WorkCover Tasmania Board upon selected topics or matters thought to require legislative review or amendment. The Tribunal provides a meeting room and secretarial support for this Committee. Deliberations of this Committee lead to the Workers Rehabilitation and Compensation Amendment Act 2008 (Number 42 of 2007) which came into effect on 31 October 2007.
7. STRATEGIC PLAN 2009
During the 08/09 period it is intended to develop a new Strategic Plan for the Tribunal based upon an endorsed Tribunal structure which takes into account that:
· There is excess capacity to deal with the presently established referral and dispute rates;
· The Commissioners are engaged in a number of roles supporting other Justice Department Outputs;
· The Tribunal is able to provide initial grass roots mediation/conciliation to support rehabilitation and return to work initiatives within the Injury Management Plan; and
· There will be workflow and workload implications upon the implementation of Clayton Report 2007.
Guidance will be sought from WorkCover Board and Justice Department as to a suitable future structure for the Tribunal to best suit the intended future role of the Tribunal and whether the Commissioners will continue to support other areas of the administration of justice in Tasmania.
It is considered that the following Clayton Report 2007 recommendations will (if implemented) provide additional work for the Tribunal;
‘4. That in order to encourage early reporting that there be a rebate to the employer excess to employers who report claims to their insurer within 48 hours of the receipt of the claim by the employer.”
“8. That payment of a lump sum made in redemption or settlement or entitlement to workers compensation and/or in settlement of a worker’s entitlement to damages in respect of any civil liability in the employer shall not be made unless the Tribunal has approved the payment/settlement. The Tribunal may approve a lump sum settlement if it is satisfied that all reasonable return to work, rehabilitation and retraining options have been exhausted. Details of such options need to be set out in the application to the Tribunal. Such an application shall also require the furnishing of evidence:
That the worker has been advised in writing as to what Centrelink preclusion periods may apply and whether there are any Medicare Australia obligations;
That the worker has received independent financial advice as to the financial implications of the settlement;
That any s71 entitlement has been taken; and
Setting out the component elements of the settlement.”
“10. That there be a costing of three alternative weekly benefit extension options. Firstly, an extension of weekly payments to age of retirement. Secondly, a model that involves an extension of the benefit duration limit to 12 years for workers with a whole person impairment (WPI) of between 15% and 19%; to 20 years for workers with a WPI of between 21% and 29% and until the age of retirement for workers with a WPI of 30% or greater. Thirdly, vesting a discretion in the Workers Rehabilitation and Compensation Tribunal to extend payments beyond the existing circumstance for persons with a WPI of 15% or greater in cases of demonstrated need.”
“12. That a discretion be vested in the Workers Rehabilitation and Compensation Tribunal to extend payments for medical and other services beyond 10 years for persons with a whole person impairment of 15% or greater in the cases of demonstrated need.”
“17. That consideration be given to the introduction of a narrative test of ‘serious injury’ to facilitate alternate access to Common Law damages for seriously injured and ill workers.”
8. INJURY MANAGEMENT, REHABILITATION AND RETURN TO WORK
As reported in previous Annual Reports the culture of lump sum settlement remains and will do so until decisive legislative action is taken to ensure that before such an option can be used after all reasonable rehabilitation, retraining and redeployment endeavours have been exhausted. It is hoped that with the roll out of the Board’s Injury Management Plan and implementation of the recommendations of the Clayton Report 2007 lump sum settlements will become the exception. The Tribunal continues to maintain details of those matters resolved at conciliation conference. There were 186 conciliation conferences held at which 65 matters settled by lump sum payment and Common Law Release. The relevant details of those 65 are:
NUMBER OF MATTERS SETTLED (Common law release) / 65RETURN TO WORK TRIALLED / 43
RETURN TO WORK INCORPORATED IN SETTLEMENT / 6
SETTLEMENT INVOLVED RESIGNATION FROM EMPLOYMENT / 45
EMPLOYMENT TERMINATED PRIOR TO REFERRAL TO THE TRIBUNAL / 14
I highlight yet again the significant number of matters where loss of employment was incorporated in or was a feature of the settlement of a claim.
9. SECTION 81A
The Workers Rehabilitation and Compensation Amendment Act 2004 provided for an initial dispute:
· The time limit be 84 days;
· A reasonably arguable case had to exist; and
· As well as describing the grounds of the dispute the employer has to provide with the referral of dispute to the Tribunal, all evidentiary material on which the employer intended to rely upon the hearing of that matter.
This provision has had an ongoing effect in maintaining a significant lowering of the number of initial dispute referrals. Section 81A lodgements have dropped from 701 in 2003/2004, 463 in 2004/2005, 322 in 2005/2006 to 249 in 2006/2007. However during 2007/2008 there was an increase in the number of lodgements from the previous year to 299.
10. LEVEL OF DISPUTATION
The extent of the fall in the initial disputation rate prior to 2007/2008 is highlighted by the following Table .This was as a result of legislative amendment and a decrease in the number of claims for compensation. In 2007/2008 there was an increase in the number of claims, a corresponding increase in the number of disputed claims referred to the Tribunal and an overall increase in the disputation rate.
Year / Number of Claims / S81A Referrals / Percentage2003/2004 / 10260 / 701 / 6.83%
2004/2005 / 10249 / 463 / 4.50%
2005/2006 / 10018 / 322 / 3.20%
2006/2007 / 9726 / 249 / 2.56%
2007/2008 / 9965 / 299 / 3.00%