Consolidated Tribunal under construction: proposed dispute resolution changes to New South Wales’ workers compensation scheme

20 August 2019

Key points

  • The New South Wales Government supports the establishment of a consolidated personal injury tribunal dealing with Workers Compensation and Compulsory Third Party insurance disputes.
  • The Government will consult with scheme participants about the reforms.

The background

In February 2019, the New South Wales Legislative Council’s Standing Committee on Law and Justice published its 2018 Review of the Workers Compensation Scheme (the Review). The Review included a number of recommendations (summarised below) to reform the NSW Workers Compensation and Compulsory Third Party insurance (CTP) schemes.

The Committee’s centrepiece recommendation was that the jurisdiction of the Workers Compensation Commission (WCC) should be expanded to encompass both Workers Compensation and CTP disputes, creating a consolidated personal injury tribunal. The intention behind the consolidated tribunal is to provide a simpler, more efficient ‘one stop shop’ to handle disputes. The tribunal would have two ‘streams’ of expertise to accommodate differences in the schemes.

Previous 2018 reforms

The proposed reforms have been influenced by changes to the New South Wales workers compensation scheme in 2018. Beforehand, disputes related to liability for claims were determined by the WCC, whereas disputes concerning work capacity decisions could be subject to internal review by the insurer, merits review were undertaken by the State Insurance Regulatory Authority, procedural review was undertaken by the Workers Compensation Independent Review Office. This ‘bifurcated’ system was criticised for its complex and unwieldy nature.

Since December 2018, the WCC has assumed responsibility for liability and work capacity disputes. Merits and procedural reviews are no longer available for decisions made after 1 January 2019. It is optional for workers to seek an independent review of a work capacity decision through their insurer.

The proposed reforms

The Minister for Customer Service responded to the Review on the Government’s behalf on 7 August 2019. Among other things, the Government supported the following recommendations in principle:

  • a personal injury tribunal with Workers Compensation and Compulsory Third Party insurance divisions should be established;
  • the proposed tribunal should be independent and judicial, have statutorily appointed presiding officers, provide a judicial appeal mechanism, publish its decisions and allow claimants to have access to legal representation; and
  • WIRO should expand its services (including dealing with complaints about the conduct of claims, conducting reviews of the workers compensation scheme and funding injured workers’ legal costs) to claimants in the CTP insurance scheme.

Consultation process

The Government will consult with scheme participants on matters such as:

  • the tribunal’s operational model and jurisdiction;
  • the provision of legal support and representation within the tribunal;
  • provisions for reviews of decisions and appeals; and
  • impacts of the reforms on scheme participants (including claimants and policy holders).

This consultation is likely to influence the final shape the reforms take.

Implications for you

The reforms are likely to affect all participants in the New South Wales workers compensation scheme, including employers, employees and insurers, as well as stakeholders in the New South Wales CTP scheme. Interested parties should pay close attention to the outcome of the consultation process and the Government’s response to it.

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