Anti-Discrimination Law
Autor: abbassoukie • February 13, 2016 • Thesis • 3,366 Words (14 Pages) • 845 Views
1. Introduction:
The field of Workers’ Compensation in Australia, has been the subject of considerable analysis and examination by academics, practitioners and policy-makers over the past two decades. At the forefront of these examinations are the development of strategies, practices, models and systems which promote and advocate the requirement for the efficient processing of claims and resolution of disputes. In 1996, the Heads of Workers’ Compensation Authorities in Australia (hereinafter referred to as ‘HWCAA’) formulated a series of recommendations which, in their view, constituted ‘best practice model’ for Workers’ Compensation. An analysis of the Workers Compensation Act 1987 (NSW)(‘WCA’) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW)(‘WIMWCA’), invariably supports the contention that the aforementioned Acts, to a substantial degree, comply with the ‘best practice model’ formulated by the HWCAA, in circumstances where, inter alia, the Acts place an overarching emphasis on the resolution of disputes through Alternative Dispute Resolution mechanisms, as well as encouraging the full participation of workers. Despite the relative conformity of the Acts to the HWCAA recommendations, it is arguable that there are a number of inherent shortcomings which ought to be addressed so as to ensure holistic conformity to the ‘best practice model’. The analysis of the aforementioned Acts in the context of the recommendations made by the HWCAA will be limited in scope to the new claims as expounded in Chapter 7.
2. Summary of claims process:
The New South Wales workers’ compensation scheme is a no-fault scheme (Robinson, 1987, p10). The process which applies in relation to workers’ compensation claims is contingent upon the nature of the claim that is sought by the worker. In summary, the WIMWCA identifies the following claims may be sought, noting that the scope of this document is limited to new claims only:
- claims for weekly payments, as delineated in Division 2, Part 3 of the WIMWCA,
- claims for medical expenses, as delineated in Division 3, Part 3 of the WIMWCA,
- claims for lump sum compensation and work injury damages, as delineated in Division 4, Part 3 of the WIMWCA.
Figure 1.1 below delineates the procedure associated claims for weekly payments pursuant to Division 2, Part 3 of the WIMWCA.
Figure 1.1:
Notice of injury must be given to the employer pursuant to s 254. | [pic 1] | The manner in which notice is provided ought to comply with s 255, and must state the name and address of the person injured, the cause of the injury and the date on which the injury was sustained. | [pic 2] | A claim for compensation must be made within 6 months after the date of the injury or accident happened: s261 (1). The time limit within which to make a claim may be extended if the requirements in s 261(4) are satisfied.
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[pic 3] | ||||
Provisional weekly payments to the employee are to commence within 7 days of notification of claim: s 267(1), unless there is a reasonable excuse for not commencing the weekly payments. | [pic 4] | An employer must forward the employee’s claim to the insurer within 7 days of receipt: s 264(1) and must respond to any requests from the insurer within 7 days: (2). | [pic 5] | Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made: s 262. |
[pic 6] | ||||
Pursuant to s 268, where an insurer does not commence weekly payments due to a reasonable excuse, the employee must be notified within 7 days that the insurer has a reasonable excuse for not commencing weekly payment: s 268(1). | [pic 7] | Within 21 days after a claim for weekly payments is made, the person on whom the claim was made must determine the claim by either accepting liability, or disputing liability. The insurer can accept provisional liability and pay weekly payments for up to 12 weeks. |
3. Dispute resolution process and whether the NSW workers’ compensation legislative regime conforms to HWCAA recommendations:
It is arguable that the recommendations made by the HWCAA insofar as the ‘best practice model’ is concerned are reflected and epitomised in the NSW Workers’ Compensation legislation. First and foremost, the object of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), as expounded in s 3, is consistent with the underlying tenet of the HWCAA ‘best practice model’ in circumstances where both advocate the need to efficiently resolve workers compensation disputes. A principal feature of the WIMWCA is the requirement of full participation of the insurer, the employee and the employer. For instance, Part 3 of the WIMWCA imposes various obligations on a claimant to provide written notice of an injury, as well as imposing obligations on the employer and the insurer (see figure 1.1 above). The effect of these provisions is to promote the free exchange of information between the worker, the employer and the insurer, thus fostering an environment of full participation between the respective parties, and thereby satisfying the first recommendation made by the HWCAA.
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