The New South Wales Workers Compensation Independent Review Office (WIRO) has issued an alert about an injured worker who has taken the unusual step of prosecuting her case manager (EML) for its failure to determine her claim for compensation as and when required under the WIMA.
The worker, Julie Heise, was involved in a high speed car crash in 2009, while on duty as a police officer. In addition to the physical injuries sustained as a result of the crash, she was later diagnosed with PTSD and depression, and eventually discharged from the NSW police force in 2015. She lodged a claim for compensation under s 66 of the Workers Compensation Act (WCA) on 11 April 2017.
EML failed to determine the claim within the 2 month period required under Chapter 7, Part 3 of the WIMA.
Basis for prosecution
A failure to determine a claim in compliance with Part 3 constitutes an offence under s 283 of the WIMA, which is a ‘penalty notice offence’ for which the State Insurance Regulatory Authority (SIRA) has exclusive power to issue a penalty notice under s 246 of the WIMA.
Notwithstanding the apparent monopoly held by SIRA in relation to s 283 penalties, the worker requested the Registrar of the Local Court to issue a court attendance notice (the means by which a prosecution is initiated) to EML, for the prosecution of EML’s alleged breach of s 283. The bases upon which the worker made the request were:
- Under the New South Wales Criminal Procedure Act (CPA), a private individual, or ‘common informer’ has the right to institute a prosecution or proceeding, unless the Act creating the offence expressly confers that right on a specific person or class of persons (which do not include that private individual); and
- Section 245 of the WIMA (which also applies to an offence under s 283) states that “Proceedings for an offence against this Act… may be instituted by (but not only by) the Authority”.
The Registrar issued and served the court attendance notice upon EML on 30 October 2018.
EML sought judicial review of, and a prohibition against, the Registrar’s decision to issue the court attendance notice, in the Supreme Court of New South Wales. It argued that s 246 of the WIMA meant that only SIRA could bring an action for breach of s 283 of the WIMA. The Supreme Court refused to grant the prohibition. The fact that the WIMA provides for the issue of penalty notices did not mean that prosecution of an offence under s 283 could not also proceed by way of court attendance notice, as provided by s 245 of the WIMA.
It follows therefore that SIRA does not have sole control over the prosecution of offences against the WIMA, as previously assumed.
For other States
The legislation in each state differs, both in respect of who is entitled to prosecute which offences under the various worker’s compensation legislation, and also under the procedural laws of each state. However, the failure to determine claims within the prescribed timelines still poses a risk to insurers Australia wide, as there are various consequences set out for inexcusable delays in the management of a worker’s claim.