Covid-19 Response

As we all know, the COVID-19 situation is one that can change rapidly, almost overnight.

My message below was issued in March 2020 for the Workers Compensation Commission. The sentiment, however, applies to the Personal Injury Commission and will be updated in due course to better reflect our status as the new Commission.

The Commission’s approach will develop in line with Public Health Orders and the evolution, and hopefully improvement, of the pandemic situation, but until that time the position in my message below will be the Commission’s approach, at least in its early stages.

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The Workers Compensation Commission continues to be focused on protecting our people and those who use our services, while continuing to deliver our important work. By keeping those who use the Commission and our staff/members in good health, cases can continue to be heard. The situation that our community currently faces with COVID-19 is unprecedented and calls for an immediate and creative response. To this end, the procedural changes outlined on this webpage have been implemented to the Commission’s operations.

These changes will be implemented during the currency of the COVID-19 crisis. Once the crisis is over, the Commission will return to standard operations. Section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) supports these changes.

I am fully committed to the principle of in-person proceedings and justice being conducted in the open. Such processes have integrity and enjoy widespread public support. They also afford the citizen the right to have their case heard and dealt with in a suitably formal process.

However, this long-held process must change due to the current coronavirus crisis. In this regard, I am balancing the competing demands of open justice against the prospect of justice being delayed. If the Commission’s decision-makers or the staff who support them become unwell with this virus, we will be unable to deliver justice and thus justice would be denied. Furthermore, I do not wish to add any further risk to the health and well-being of the lawyers and litigants who come to the Commission every day in large numbers.

I have discussed these proposed measures outlined on this webpage and in our e-Bulletins with The Law Society of New South Wales and the Bar Association. I have also consulted with the Commission’s User Group. All three groups are very supportive of these proposed changes to practices in order to help the Commission and those who use its services contend with the current COVID-19 crisis. I am indeed grateful to these groups for their sensible and pragmatic approach as well as some very practical and helpful suggestions they have made in order to enhance this change of process.

I will continue to confer with stakeholders during the currency of the revised procedures to ensure their optimal operation and will implement any further changes or enhancements that may be required. Decisions during this period will continue to be published on the Commission’s website.

The Commission is very fortunate that prior to this crisis, expenditure was made to develop the online portal and paper-lite approach to cases. This will serve us very well during this time.

I reiterate that once this crisis is over, the Commission will return to in-person proceedings. When this occurs will depend upon the best medical advice available.

Finally, I would also ask for your patience and understanding. Each of us is being called upon to be creative and to adapt to the extraordinary circumstances we all face. The Commission’s staff are working very hard to enable these changes to be implemented. I am confident that with the goodwill and co-operation of all involved, we can adapt our usual way of doing business to keep in operation the processes that deliver justice.

Judge Gerard Phillips

President

Procedural Direction PIC10 – Hearings during COVID-19

Procedural Direction PIC6 – Medical assessments

Workers Compensation Division

This content must be read together with the relevant Commission Procedural Directions. Any reference in this section to an arbitrator should be read as a reference to a non-presidential member, and any reference to an AMS should be read as a reference to a medical assessor.

Conciliations/arbitrations and mediations

Since 23 March 2020 conciliations/arbitrations and mediations have been conducted primarily by telephone, with some matters conducted using a suite of audio-visual platforms. This will continue until further notice.

Matters conducted by telephone

Please refer to:

• The Protocols for conducting conciliations, arbitrations or mediations via teleconference
• A Guide for Legal Practitioners – Conducting Telephone Conciliations, Arbitrations and Mediations.

All arbitration proceedings and presidential proceedings conducted by telephone will be recorded.

Matters conducted using audio-visual platforms

Proceedings will be conducted via audio-visual platforms generally when the parties and the Arbitrator agree to do so at the telephone conference (subject to availability of the audio-visual facility). Other requests for a matter to be conducted using audio-visual platforms should be emailed to the Commission here.

Importantly, the use of audio-visual platforms is developing quickly, and updates in procedure and related issues are being provided using several mechanisms can be found on Virtual Venue Centre page. Practitioners should also read the Commission’s correspondence about the arrangements for each matter.

All arbitration proceedings and presidential proceedings conducted by audio-visual platforms will be recorded.

Requests for in-person proceedings

In exceptional circumstances conciliation/arbitrations may be conducted in person. Access to an in-person hearing is governed by Procedural Direction PIC10 – Hearings during COVID-19 . Please read the practice direction for more information and make applications in accordance with it.

The COVID-19 protocols will apply during any in-person hearing. They are set out in the e-bulletins referred to below – see, in particular, e-bulletin 105.

Relevant e-bulletins

The following e-bulletins were issued by the Workers Compensation Commission, however they continue to provide useful guidance to users and practitioners within the Workers Compensation Division of the Personal Injury Commission.

e-bulletin 106 – Recommencement of in-person medical assessments and protocols for medical assessments during pandemic

e-bulletin 105 – Entry to the Commission and requirements to exit

e-bulletin 104 – Pilot programme at the Commission to conduct some conciliation/arbitration

e-bulletin 102 – Updated protocols and checklist for conducting telephone con/arbs and mediations

e-bulletin 101 – The Commission’s operations and case management and resolution of medical disputes

e-bulletin 100 – Week 1 of telephone conciliations, arbitrations and mediations

e-bulletin 99 – Suspension of face-to-face medical assessments and suspension of mail by DX and post

e-bulletin 98 – Protocols for telephone conciliations, arbitrations and mediations

e-bulletin 97 – Novel coronavirus (COVID-19) update

e-bulletin 96 – Coronavirus measures at the Commission

Motor Accidents Division

This content must be read together with the relevant Commission Procedural Directions. Any reference in this section to an arbitrator should be read as a reference to a non-presidential member, and any reference to an AMS should be read as a reference to a medical assessor.

1999 Scheme CARS matters during COVID-19 pandemic

All preliminary conferences will continue as usual by telephone with the Member and parties. It is a matter for the Member, with the agreement of the parties, whether the assessment of the claim will proceed on the papers, by teleconference or MS Teams videoconferencing, or will be deferred.

Procedures for teleconferences and videoconferences for claims assessment conferences

Preparation by parties and legal representatives

Parties must notify the Commission details of who will be attending the conference, including the following:

• First and last name of all participants (e.g. the claimant, the insurer, legal representatives including Counsel, and any witnesses if required)
• Whether an interpreter is required, and if so which language
• Email address of all participants
• Best contact number for all participants.

It is a matter for parties and their legal representatives to determine the best way for them to conduct the teleconference or MS Teams videoconference (i.e. at the same premises or at different locations) and ensuring the current COVID-19 health and safety requirements are adhered to.

Prior to the teleconference or MS Teams videoconference, parties are encouraged to consult with each other to maximise the likelihood that the matter will settle and to identify any agreed issues and those still in dispute.

How will teleconferences run?

Members may use the Telstra teleconferencing service, which Commission staff will set up in consultation with parties.

An MS Teams teleconference may also be used. This is the better option if an interpreter is involved.

Alternatively, the Member may use their own telephone system.

How will MS Teams videoconferences run?

MS Teams videoconferences will be scheduled generally in the standard time slots of 10:00am and 2:00pm.

The Commission has currently some limitations in the number of MS Teams videoconferences which can be held in any week. However, we will always endeavour to meet every request.

The Commission will set up and host the MS Teams videoconference.

What happens after the teleconference or MS Teams videoconference assessment conference?

1999 Scheme CARS proceedings that commenced ON OF BEFORE Sunday 28 February 2021 during COVID-19 pandemic

In accordance with cl 18.2 of the Claims Assessment Guidelines (CAGs), the Member will issue a certificate and statement of reasons within 15 working days of the conclusion of an assessment conference.

On-the-papers assessments

If appropriate, a Member may determine, with agreement from the parties, that the assessment of the claim is suitable for assessment on the papers.

In accordance with cl 18.2 of the CAGs, the Member will issue a certificate and statement of reasons within 15 days of the provision by the parties of all information and documentation sought by the Member on a date fixed by the Member.

Deferral of matters

Upon reviewing a matter, the Member may determine, with agreement from the parties, that the assessment of the claim is not suitable for assessment on the papers, or by teleconference or by MS Teams videoconferencing, and may either vacate an already scheduled assessment conference or defer the assessment of the claim until such time that in-person assessment conferences are permitted by the Commission.

1999 Scheme CARS proceedings that commenced ON OR AFTER Monday 1 March 2021 during COVID-19 pandemic

In accordance with the Personal Injury Commission Practice Directions, the Member will issue a certificate and statement of reasons as soon as practicable following the conclusion of an assessment conference.

On-the-papers assessments

If appropriate, a Member may determine, with agreement from the parties, that the assessment of the claim is suitable for assessment on the papers.

In accordance with the Personal Injury Commission Practice Directions, the Member will issue a certificate and statement of reasons as soon as practicable following the provision by the parties of all information and documentation sought by the Member on a date fixed by the Member.

Deferral of matters

Upon reviewing a matter, the Member may determine, with agreement from the parties, that the assessment of the claim is not suitable for assessment on the papers, or by teleconference or by MS Teams videoconferencing, and may either vacate an already scheduled assessment conference or defer the assessment of the claim until such time that in-person assessments conferences are permitted by the Commission.

On-the-papers assessments

If appropriate, a Member may determine, with agreement from the parties, that the assessment of the claim is suitable for assessment on the papers.

In accordance with the Personal Injury Commission Practice Directions, the Member will issue a certificate and statement of reasons as soon as practicable following the provision by the parties of all information and documentation sought by the Member on a date fixed by the Member.

2017 Scheme claims and merits matters

Merit review matters

• Merit review matters may be conducted on the papers or by teleconference or MS Teams videoconference, as appropriate (with the exception of face-to face meetings)  in accordance with Rule 116 of the PIC Rules.
• The same procedures for teleconferences and videoconferences as outlined above apply to merit review matters.
• The merit review matter will be determined by a merit reviewer, with a certificate and a brief statement of reasons for determination being issued to the parties.

Miscellaneous claims matters

• Miscellaneous claims matters may be conducted on the papers or by teleconference or MS Teams videoconferencing, as appropriate (with the exception of face-to face meetings).
• It is a matter for the Member, with the agreement of the parties, whether the determination of the miscellaneous claims matter will proceed on the papers, by teleconference or by MS Teams videoconference, or will be deferred.
• The same procedures for teleconferences and videoconferences as outlined above apply to miscellaneous claims matters.
• The miscellaneous claims matter will be determined by a Member, with a certificate and brief statement of reasons being issued to the parties.

Assessment of a claim for damages

• A claims assessment may be conducted on the papers or by teleconference or MS Teams videoconference, as appropriate (with the exception of face-to face meetings).
• It is a matter for the Claim Assessor, with the agreement of the parties, whether the determination of the assessment of the claim for damages will proceed on the papers, by teleconference or by MS Teams videoconference, or will be deferred.
• The same procedures for teleconferences and videoconferences as outlined above apply to claims assessment matters.
• The claims assessment will be determined by a Member, with a certificate and brief statement of reasons being issued to the parties.

Workers Compensation Division

This content must be read together with the relevant Commission Procedural Directions. Any reference in this section to an arbitrator should be read as a reference to a non-presidential member, and any reference to an AMS should be read as a reference to a medical assessor.

The Commission has developed several ways for dealing with medical disputes during the COVID-19 pandemic. These approaches have been developed in response to the various restrictions. Please read the following e-bulletins and protocol; the most recent is listed first.

e-bulletin 113 – Changes to medical procedures due to Public Health Order

Protocols for Medical Assessments during Coronavirus Pandemic (link) www.wcc.nsw.gov.au/__data/assets/pdf_file/0006/952341/WCC-Published-Protocols-for-Medical-Assessments-During-Pandemic-06.01.21.pdf

e-bulletin 112 – Updated medical assessment process

e-bulletin 109 – Update to medical assessment procedures

e-bulletin 106 – Recommencement of in-person medical assessments and protocols for medical assessments during pandemic

e-bulletin 99 – Suspension of face-to-face medical assessments and suspension of mail by DX and post

Motor Accidents Division

This content must be read together with the relevant Commission Procedural Directions. Any reference in this section to an arbitrator should be read as a reference to a non-presidential member, and any reference to an AMS should be read as a reference to a medical assessor.

The Commission will work with the parties to limit in-person medical assessments and determine alternative methods of resolving disputes.

Determining alternate pathways

• The Commission will contact the parties to determine whether an alternative to in-person assessment can be used to determine a medical dispute.
• The Commission will instruct parties of the time, date and mode of assessment once determined. This may take time, especially when alternate arrangements are made.
• The Commission requires insurers and legal representatives to respond promptly to requests regarding the appropriate mode of assessment.

When an alternative pathway is not suitable

• Any matters that are cancelled because the assessment can only proceed as an in-person assessment, when there are no exceptional circumstances, will be placed on a pending medical matters list for allocation as soon as practicable.

Exceptional circumstances

Parties should advise the Commission if a matter that cannot be progressed with an alternate approach should continue to be considered for in-person medical assessment due to exceptional circumstances. This may include, but is not limited to the following:

• A decision is required to determine an entitlement to a statutory benefit
• A decision is required for an urgent claims assessment matter
• The Claimant has a terminal illness
• The Claimant has financial hardship
• The Claimant has travel, residency or visa restrictions
• A dispute matter is currently in court.

In-person assessments require approval of the President to proceed.

When an in-person assessment is approved

The Commission will work with medical assessors conducting in-person assessments to confirm that assessments are proceeding in line with NSW Public Health Orders.

• All documents in proceedings should be lodged via the online portal.
• All other correspondence may be sent by email to the Registry here.