Welcome

Welcome to the latest edition of Towards the PIC.

This edition focuses solely on appeal and review time limits in the Commission’s Motor Accidents and Workers Compensation Divisions. Please familiarise yourself with this material as it applies to your practise.

I will be back in touch with you later this week with more key updates ahead of the opening of the Personal Injury Commission next Monday.

Sincerely

Judge Gerard Phillips

Appeal and review time limits

Motor Accidents Division

Application for review of

• a medical assessment under the Motor Accidents Compensation Act 1999 Act,
• a medical assessment under the Motor Accidents Injuries Act 2017,
• a merit review under the Motor Accidents Injuries Act 2017

Section 63(7) of the Motor Accidents Compensation Act 1999 currently provides with respect to an application for review of medical assessment under the Motor Accidents Compensation Act 1999 Act that the Motor Accidents Medical Guidelines (the Guidelines) may limit the time for making an application under the section. Clause 16.3 of the Guidelines provides for a 30-day time period for the lodging of an application for review and clauses 5.1 and 5.2 of the guidelines provide a discretion to abridge or extend any time limit fixed by the Guidelines.

Section 7.26(10) of the Motor Accidents Injuries Act 2017 currently provides that with respect to an application for review of a medical assessment under the Motor Accidents Injuries Act 2017 that the Motor Accident Guidelines (the guidelines) may limit the time for making an application under the section. Clause 7.263 of the guidelines provides for a 28-day time to make the application for review and clause 7.96 of the guidelines provides discretion to a DRS decision-maker to abridge or extend any time limit fixed by Part 7 or by a direction of a decision-maker.

Section 7.15(6) of the Motor Accidents Injuries Act 2017 currently provides that with respect to an application for review of a merit review under the Motor Accidents Injuries Act 2017the Motor Accident Guidelines (the guidelines) may limit the time for making an application under the section. Clause 7.186 of the guidelines provides for a 28-day time to make the application for review and clause 7.96 of the guidelines provides discretion to a DRS decision-maker to abridge or extend any time limit fixed by Part 7 or by a direction of a decision-maker.

With the commencement of the Personal Injury Commission Act 2020 on 1 March 2021, section 63(7) of the Motor Accidents Compensation Act 1999 and section 7.26(1) of the Motor Accidents Injuries Act 2017 are omitted by consequential amendment and replaced by provisions which provide that an application made must be made within 28 days after the parties to the medical dispute were issued with the original certificate as to the review is sought.

With respect to merit review, section 7.15(6) of the Motor Accidents Injuries Act 2017 is omitted by consequential amendment and replaced by a provision which provides that an application must be made within 28 days after the parties to the merit review were issued with the certificate as to the merit reviewer’s decision.

Parties are therefore advised that where a certificate of a medical assessor is issued on or after 1 March 2021, applications for review of a medical assessment under section 63 of the Motor Accidents Compensation Act 1999 and section 7.26 of the Motor Accidents Injuries Act 2017, must be made within 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought.

Where a certificate of a merit reviewer’s decision is issued on or after 1 March 2021 an application for review of the merit review must be made within 28 days after the parties to the merit review were issued with the certificate as to the merit reviewer’s decision.

There is no provision in the Personal Injury Commission’s procedural framework, including the Personal Injury Commission Rules 2021, to extend the time to make such applications for review.

It is my understanding that it was intended to retain the ability for an extension of time with respect to such applications for review and this matter is currently being reviewed by the NSW Government.

Workers Compensation Division

Appeals to Presidential Members of the Personal Injury Commission under section 352 of the Workplace Injury Management and Workers Compensation Act 1998:

The power to make rules to extend or abridge time under Part 9, Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) is contained in section 364(1)(g) of the 1998 Act.  Section 364(1)(g) will be repealed by the Personal Injury Commission Act 2020, with effect from 1 March 2021.

The rule making power under section 20 of the Personal Injury Commission Act 2020 does not provide for the making of rules to extend or abridge any period specified in Part 9, Chapter 7 of the 1998 Act.

Section 352(4) of the 1998 Act provides that an appeal to the Commission constituted by a Presidential member can only be made within 28 days after the making of the decision appealed against. Currently, rule 16.2(5) of the Workers Compensation Commission Rules 2011 provides for the extension of time to appeal in exceptional circumstances. This rule will only apply where the first instance member decision is made before 1 March 2021.

Decisions by non-presidential members of the Workers Compensation Division, made on or after 1 March 2021, will be subject to the 28-day time limit to make an appeal against the decision. There is no provision in the Personal Injury Commission Rules 2021 to extend the time to make an appeal.

It is my understanding that it was intended to bring forward the current state of the law and to retain the ability for an extension of time with respect to appeals to Presidential members and this matter is currently being reviewed by the NSW Government.

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