Paper delivered for the NSW Bar Association, CPD facilitated by the Bar ADR Committee
Paper delivered for the NSW Bar Association 4 April 2022
Alternative Dispute Resolution in the Personal Injury Commission of New South Wales
Paper delivered for the NSW Bar Association, CPD facilitated by the Bar ADR Committee
Monday 4 April 2022
Paper prepared by:
Judge Gerard Phillips – President, Personal Injury Commission
Philippa O’Dea – Mediator, Personal Injury Commission, Barrister, Member Bar ADR Committee
Belinda Cassidy – General Member, Motor Accidents Division, Personal Injury Commission
Rosemary Sagvand – Principal Lawyer, Presidential Chambers, Personal Injury Commission
Overview of the Personal Injury Commission
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and is established under s 6 of the Personal Injury Commission Act 2020 (PIC Act). The Commission is the combination of two legacy bodies, the Workers Compensation Commission (WCC) and the Dispute Resolution Service (DRS) which previously sat within a government department. The Commission is now made up of a Motor Accidents Division and Workers Compensation Division. The Commission’s primary function is to resolve disputes between people injured in motor accidents or workplaces in NSW and insurers and employers.
The objects of the PIC Act require the Commission to encourage early dispute resolution (s 3(b)(iii) of the PIC Act). Additionally, s 3(c) of the PIC Act requires the Commission to resolve the real issues in the proceedings justly, quickly, cost-effectively and with as little formality as possible.
This mandate is complemented by the guiding principle which is found in s 42 of the PIC Act. The guiding principle requires the Commission to facilitate the just, quick and cost-effective resolution of the real issue in the proceedings and places parties to the proceedings, including their lawyers, under a duty to cooperate with the Commission in giving effect to this guiding principle. Additionally, the Commission’s practice and procedure should be implemented to facilitate the resolution of the issues between the parties in a way which is proportionate to the importance and complexity of the subject matter of the proceedings (s 42(4) of the PIC Act).
Consequently, it is evident from the statutory mandates contained in ss 3 and 42 of the PIC Act that Parliament is placing great emphasis upon the early resolution of disputes. Section 52(1) of the PIC Act stipulates that Commission ‘proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means’.
While the topic of this paper is alternative forms of dispute resolution, it would be remiss not to mention the alternative way in which disputes have been resolved since the pandemic began. As you will all appreciate, the Commission has not yet had the opportunity to hold any in-person hearings since commencement on 1 March 2021, while face to face DRS hearings and WCC hearings stopped in early 2020. Mediators, Medical Assessors, Merit Reviewers and Members have all demonstrated their agility by embracing the remote resolution of disputes as too have the participants in our proceedings. Although there is desirability for formal in-person hearings for certain types of matters, the Commission will continue to offer audio visual hearings in the future, consistent with the objectives of the PIC Act in ensuring that its dispute resolution services are accessible, quick, cost-effective and conducted with as little formality as possible.
As a result, the Commission is required to work with all parties to discuss and encourage ways of resolution. Many of the Commission’s disputes are resolved by alternative dispute resolution without the need to proceed to formal hearings. Medical assessments are utilised for disputes about treatment and the nature and extent of injuries or impairment. In cases where parties are not able to reach their own resolution, the Commission will only then decide the dispute, with avenues for appeal or review. As stipulated by Hon Victor Dominello, MP, Minister for Customer Service in his second reading speech, this dispute resolution model in the Commission over two schemes is intended to reduce “process trauma” experienced by injured people involved in disputes, by:
- Providing a ‘one-stop shop’ for dispute resolution services
- Removing confusion for injured people about where to go to access dispute resolution services
- Reducing forms and complexity, harmonising processes and providing better access to dispute resolution across all schemes, and
- Enabling more streamlined and efficient dispute resolution services.
The dispute resolution model which has been developed largely adopts the existing procedures in place over both the Motor Accidents and Workers Compensation schemes, with a view of working to harmonise these procedures over the years whilst acknowledging the differences in enabling legislation.
The model is reflected in the Commission’s rules and procedural directions, and requires the early exchange of information and the early appointment of a conference with parties, usually within 28 days of filing of the matter, in order to commence an attempted resolution of the dispute.
The early up front exchange of information by the parties is done by way of the Commission’s online portal. It is noteworthy that with respect to matters in both divisions, most claimants have been dealing with the relevant insurer, either workers compensation or third party, prior to the commencement of proceedings, and this is a point of difference with disputes in other jurisdictions where the receipt of the claim might be the first notice of the actual existence of the dispute. For example, in the Workers Compensation scheme, a matter may only be referred to the Commission where a dispute is already in existence (ss 288 and 289 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act)). A dispute must be issued in accordance with notice requirements pursuant to s 78 of the 1998 Act,which requires all documents in support of that dispute to be served at that time, prior to lodgement in the Commission. In most circumstances, by the time the matter is lodged in the Commission, claimants have already sought a review of that decision with their insurer pursuant to s 287A of the 1998 Act. Section 289A provides that a dispute may not be referred to the Commission unless it concerns matters previously notified. Accordingly, the issues in dispute and supporting evidence are already ventilated between parties at the time of commencing proceedings in the Commission.
This early exchange of information places both parties at an early stage after the commencement of proceedings in a situation where the matter is given its best chance of being resolved.
While the requirement for early exchange of information runs across both divisions of the Commission, the enabling legislation of each division stipulates the various dispute resolution processes to be deployed. Disputes lodged with the Commission will follow different pathways depending on the scheme and legislation under which they are lodged, with different dispute resolution mechanisms implemented to progress those matters. This paper deals with the approaches in both divisions.
Dispute Resolution in the Workers Compensation Division
The Commission has exclusive jurisdiction to hear all matters arising under the 1998 Act and the Workers Compensation Act 1987(the 1987 Act) except for common law remedies unless for the purpose of, and in connection with the operation of Pt 6 of Ch 7 of the 1998 Act (Work Injury Damages). Of interest, the enabling legislation which contains the provisions regarding the Commission’s jurisdiction in the determination of these disputes is guided by objectives at s 3 of the 1998 Act. These objectives include establishing a workers compensation system which assists injured workers, promotes their recovery, and is fair and affordable.
Disputes are filed in the Commission by way of an Application, the form of which depends on the matter in dispute. The dispute resolution processes then deployed by the Commission hinges on this and includes the setting of a teleconference; conciliation followed by arbitration (often given the hybrid term of “con/arb”); referral for a Medical Assessment, and mediation in claims for Work Injury Damages.
Teleconferences are usually the first step of the dispute resolution pathway in the Workers Compensation Division, and are a quick and effective method to bring parties together. The teleconference is conducted by a Member, who uses their skills to help the parties to identify the real issues in the dispute, explore settlement options and outcomes, and attempt to find a solution acceptable to all parties. The initial teleconference is the opportunity for issues to be defined, and any required Directions for Production to be issued.
If a matter is not resolved at the initial teleconference, the parties will meet again on a date set by the Member for the conciliation and/or arbitration. The conciliation part of this sitting is mandatory. The Member will again attempt to assist the parties to reach a resolution, with opportunities for the parties to discuss settlement options privately with their legal representation. If the matter does not resolve, it will proceed to an arbitration hearing, where that Member will hear submissions from the parties’ legal representatives and make a binding determination.
This alternative dispute resolution model, which is a blend of various mechanisms by the same Member, is a process well known to practitioners who have practised in the prior WCC, and the industrial commissions.
The basis for this dispute resolution approach is guided by the PIC Act and carries on from the prior WCC. Part 5 of Sch 3 ‘Workers Compensation’, s 6 of the PIC Act provides as follows:
“Part 5 Special practice and procedure
6 Commission to attempt conciliation
(1) The Commission constituted by a non-presidential member is not, in the exercise of its substantive Division functions, to make an award or otherwise determine a dispute referred to the Commission for determination without first using the member’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. (emphasis added)
(2) No objection may be taken to the making of an award or the determination of a dispute by the Commission constituted by a non-presidential member on the ground that the member had previously used the member’s best endeavours to bring the parties to the dispute to a settlement.”
While this hybrid blend of a facilitative, at times evaluative and potentially adjudicative model is not uncommon in tribunals, practitioners of “pure” alternative dispute resolution are alternatively intrigued and/or shocked at this provision. Purists may assert that the ADR practitioner should not proceed to hear and determine the dispute having been involved in its conciliation. However pursuant to this provision, the fact that a Member has attempted to resolve the matter by using their best endeavours is not an objection to their proceeding to hear and determine the dispute.
Commission members approach this task in a manner which may be described as “inquisitorial”. They conduct the conciliation in a manner which does not posit concluded views, meaning that the parties can have confidence that there is a mind open to be persuaded in the event that the application has to proceed to determination. It is entirely appropriate that preliminary views be stated if that is of assistance in guiding the parties to a resolution. Frequently though, this process of conciliation, even if unsuccessful, does lead to a confinement of issues to be determined in the arbitration hearing. In this way the statutory mandate to determine the “real issues” in dispute can thus be met.
Historically, the application of this model has seen on average, close to 90% of disputes before members resolving by agreement. These resolution rates are accessible on the Commission’s website, in the Workers Compensation Commission Annual Review reports over the years, as well as the Personal Injury Commission’s first annual review which contains figures for the first four months of the Commission’s life from 1 March 2021 – 30 June 2021.
The dispute resolution pathways as relevant to the type of dispute at hand are summarised below.
The expedited assessment allows certain disputes to be fast tracked to a teleconference before a delegate of the President within two weeks of lodgement at the Commission. The expedited assessment provisions are contained in Pt 5 of Ch 7 of the 1998 Act. The disputes which may be expedited include weekly compensation claims of up to twelve weeks, work capacity decisions which involve a discontinuance or reduction of weekly payments, and past medical expenses compensation disputes up to an indexed amount ($9,844.00 as at 1 October 2021, updated in April and October of each year).
These matters will rarely proceed past the teleconference stage. The parties are encouraged to consider resolution of the matter, and if they are unable to reach a resolution, the delegate will determine the issues and make an interim payment direction. These directions are not generally subject to appeal or review as per s 296(2) of the 1998 Act, however, they may be revoked at any time under s 299 of the 1998 Act.
Workplace injury management disputes are also heard by way of an expedited assessment (Div 3 of Pt 5, Ch 7 of the 1998 Act). These disputes concern a failure of a party to comply with an obligation imposed by or under Ch 3 of the 1998 Act, such as non-compliance by an injured worker or employer with their return to work or injury management obligations. If a workplace injury management dispute does not resolve, recommendations may be made by the President in respect of compliance or action to be taken by the relevant party.
General compensation disputes (statutory benefits)
General compensation disputes include all weekly compensation claims exceeding twelve weeks, claims for medical expenses exceeding the current indexed amount, and all other liability disputes for which the Commission has jurisdiction under the workers compensation legislation. This includes Work Capacity Disputes, where liability for other entitlements are also in issue.
These disputes are generally commenced through lodgement of an Application to Resolve a Dispute (Application), and requires the respondent to file a Reply to the Application.
A teleconference is scheduled before a Member within 28 days from the date of lodgement of Application, for the purpose of exploring potential resolution and the narrowing issues at hand. If the parties fail to reach agreement at the teleconference, the matter will be set down for a face-to-face conciliation and an arbitration hearing (the “con/arb” stage) in three to eight weeks, depending on whether Directions for Production are required. This mandatory conciliation is another opportunity to allow the parties to explore settlement of the matter, facilitated by the Member. If the parties agree, consent orders are made by the Member pursuant to r 71 of the Personal Injury Commission Rules 2020.
If the parties fail to reach agreement at conciliation, the Member will conduct an arbitration hearing on the same day, where parties provide oral submissions, occasionally supported by written submissions. The Member’s determination is final and binding on the parties.
Medical disputes which require referral for a medical assessment are contained in Pt 7 of the 1998 Act. Disputes which concern liability for and the extent of permanent impairment resulting from an injury are generally referred to a Medical Assessor, although, in certain circumstances, a dispute in relation to the degree of permanent impairment may be referred to a Member for conciliation and/or determination, in a manner which is prescribed by regulation.
Section 60(5) of the 1987 Act provides that disputes concerning proposed medical treatment or services pursuant to s 60 of the 1987 Act may also be referred for medical assessment under Pt 7 of the 1998 Act; although, these matters are referred to a Member for an initial teleconference. Failing to reach resolution at the teleconference, the matter may be set down for the “con/arb” stage, allowing another opportunity for the Member to facilitate resolution. At that point the Member may choose to refer the matter to a Medical Assessor for a non-binding opinion on the medical dispute, or, if preferred, take submissions and determine the dispute.
Work Injury Damages
The Commission is responsible for administering the mediation framework for work injury damages (WID) claims under the 1998 Act. A WID claim is founded on an action in negligence and as a threshold requirement, a worker must establish a whole person impairment of at least 15% before bringing a claim. While s 312 of the 1998 Act provides that proceedings in respect of a WID claim may be taken in any court of competent jurisdiction, the claimant must first serve on the defendant a pre-filing statement (s 315) and no sooner than 28 days later must apply to the Commission for mediation (s 318A). Court proceedings for a WID claim cannot be commenced while the claim is the subject of mediation in the Commission (s 318A(4)). The defendant may decline to participate in mediation if it wholly disputes liability in respect of the claim but otherwise cannot decline to participate (s 318(3)).
Mediators are appointed by the President to the Commission’s panel of mediators under s 39 of the PIC Act. On referral of a dispute to a mediator, the mediator must use their best endeavours to bring the parties to agreement on the claim (s 318B(1)). If the parties do not achieve a resolution at mediation, the mediator must prepare a certificate of final offers of settlement (s 318B(2)).
Consistent with the process of mediation in other jurisdictions, any settlement offers made during mediation are confidential and if the matter is not resolved at mediation and proceeds to a court hearing, the offers are not to be disclosed in any court document (s 318E). There is a limited exception to the confidential nature of the settlement offers made at mediation: if the matter proceeds to hearing, after the court hands down its decision, the certificate of final offers might be used in support of an application for costs. The costs provisions set out in regulations 94–99 of the Workers Compensation Regulation 2016 therefore serve as an incentive for parties to make realistic final offers if the matter cannot be resolved.
Section 318 of the 1998 Act serves as an incentive for the parties to ensure that their evidence is served before the mediation occurs. If the matter does not settle at mediation and proceeds to Court to be heard and determined by a Judge, the parties are precluded from relying on any evidence not served prior to mediation, except with leave of the Court.
The defendant is expected to ensure an insurer representative attends the mediation with the appropriate authority to negotiate and resolve the dispute. The parties are entitled to legal representation at the mediation (s 318C). The costs regime is prescribed by the legislation and regulations.
The range of issues in dispute in a WID matter are relatively confined when compared to mediations in other jurisdictions. The primary issue will often be whether the defendant is liable in negligence for the economic loss sustained by the worker as a result of the work injury. There is often expert evidence on this issue. The issue of damages is confined by the 1987 Act which prescribes that only damages for past and future economic loss may be awarded by a Court for a WID claim (s 151G). Associated with past and future economic loss are a possible Fox v Wood claim, being a claim for the tax paid on past weekly payments of compensation; and claims for superannuation (past and/or future). An issue which often arises is the claimant’s capacity to work following the injury, and any consequential residual earning capacity. Another issue which is often ventilated at mediation is any requirement of the claimant to obtain an extension of the limitation period since the 1987 Act regulates the time in which proceedings may be commenced (s 151D).
The statistics show that of all the matters proceeding to mediation, approximately 70% resolve. Specifically, in the last 12 months of the WCC, the settlement rate following mediation is 69.9%, with the settlement rate in the first four months of the Personal Injury Commission being 73.1% (see the Workers Compensation Commission and Personal Injury Commission Annual Review).
Dispute Resolution in the Motor Accidents Division
Motor accident compensation legislation has a shorter history than workers compensation in NSW. It was the snail in the bottle and then the increasing numbers of motor vehicles on our roads that led to the passage of the Motor Vehicles (Third Party) Insurance Act 1942 (the 1942 Act). The Government Insurance Office in those days provided the compulsory insurance that is now known as the Greenslip. Under the 1942 Act, the only form of compensation was a lump sum of damages, there was no claims process and the first thing the GIO knew about a claim was when the Statement of Claim landed on the desk. The only avenue for dispute resolution was the Court and many a practitioner, including some of the Personal Injury Commission’s members, cut their litigious teeth on acting for or against the GIO in the District Court.
In 1988 the Motor Accidents Act privatised insurance, created the Motor Accidents Authority and initiated an early claims process but maintained the scheme of lump sum damages and court based dispute resolution.
Significant change occurred in 1999 with the passage of the Motor Accidents Compensation Act (MAC Act), and the creation of the in-department dispute resolution units of the Medical Assessment Service (MAS) and the Claims Assessment and Resolution Service (CARS).
Medical disputes (primarily disputes about whole person impairment and to a lesser extent about treatment) were resolved by doctors appointed as Medical Assessors. There was a right of review to a panel of three Medical Assessors and an option for further assessment and the gateway to both was controlled by the Proper Officer.
The MAC Act still only provided for lump sum damages claims however those claims had to proceed through CARS either by assessment or exemption from assessment before proceedings could be commenced in Court. CARS was ADR in that it was the alternative to the courts, but it was not an alternative choice but a mandated alternative.
One of the objects of the MAC Act was “to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims” (s 5(1)). It was the concept of an alternative to the long-standing court processes that drove the early architects and builders of CARS focusing on “just, quick and cost effective” dispute resolution as a way to enhance the efficiency of the compensation scheme. CARS adopted a model of dispute resolution that was inquisitorial not adversarial, that relied on the personal injury and motor accident expertise of the decision-maker, that was not bound by the rules of evidence and which was informal and flexible and able to deal with multi-million dollar claims for the catastrophically injured or the whiplash of the retiree seeking payment of little more that past and future treatment expenses.
The process of assessment involved a preliminary teleconference (with the legal representatives only) followed by an assessment conference which was usually conducted by way of an in-person hearing. Evidence was taken from the claimant with the legal representatives of the parties present. Medical and expert witnesses were rarely seen and there was no power to summons a witness to attend. Most hearings concluded after 3–4 hours. Multi-day hearings were a rarity. Motor accident litigation rates in the District Court plummeted.
Primarily claimants had the option of rejecting the assessment and proceeding to a hearing de novo in Court but there were no rights of appeal from a CARS assessment. Further Assessments were allowed but only about 20 per year took place (out of 2000 assessments) per year.
Disputes arising in MAC Act claims and the assessment of damages are now dealt with by the Commission pursuant to provisions of the MAC Act and parts of the Medical and Claims Assessment Guidelines.
There are transitional provisions in the PIC Act which must be considered when lodging or replying to an application under the MAC scheme.
This paper will not deal with MAS and CARS and the MAC Act in any further detail because those dispute resolution units no longer exist and the number of claims under the MAC Act are finite and diminishing. However, the above observations are relevant because the current scheme and the ‘new’ legislation kept many of the features of the old.
The Motor Accident Injuries Act
In 2017 the Motor Accident Injuries Act (MAI Act) came into force. This legislation marked a substantial shift in CTP compensation schemes in this state in that, mirroring workers compensation, there is now a scheme of not-at-fault statutory benefits and fault based lump sum compensation. An injured person can have both claims, there is no choice or election of which to pursue.
The Act established the Dispute Resolution Services (a merger of MAS and CARS) and created a new regime of merit review and miscellaneous claims assessment to determine disputes in the statutory benefits space as well as maintaining the system of claims assessment in lump sum damages claims. Access to the courts has been maintained for rejected claims assessments or claims that are exempt from assessment and there are limited rights of review (merit review matters can be reviewed by a panel of three).
The MAI Act kept the roles of claims and medical assessors and created a new role of merit reviewer for many of the disputes concerning statutory benefits.
The MAI Act includes a number of duties imposed on both claimants and insurers. One of these is to act in good faith (s 6.3) and amongst other things disclose all relevant information. Another is to try to resolve the claim justly and expeditiously (s 6.4). Again, the scheme of dispute resolution in the MAI Act fits perfectly with the guiding principle of the PIC Act.
The same model of inquisitorial, informal and flexible dispute resolution was adopted by DRS with a process that included a preliminary conference followed by an assessment conference.
While there is no legislated conciliation process, the preliminary teleconference is the Member’s opportunity to discuss the matter, explore the issues and to promote resolution of the claim, similarly to the teleconference in workers compensation matters. A report is written following the preliminary teleconference and shared with the parties. A well-crafted report documenting some preliminary views can lead to the earlier settlement of the claim or at least the identification of the “real issues” in dispute in furtherance of the “guiding principle” in s 42.
Lump sum damages claims are, it should be said, easier to resolve. Disputes about liability in statutory benefits claims for example are often harder to settle because they are black and white (someone is entitled to statutory benefits or they are not) with very little room for compromise and because so much is at stake for both parties (including a lifetime of treatment and care benefits which cannot be commuted).
Dispute resolution of all MAI Act claims related matters for both statutory benefits and damages are now within the purview of the Motor Accidents Division of the Commission.
The objects of the MAI Act include “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes” for the first time acknowledging the significance of dispute resolution in achieving the overall aims of the scheme.
As with workers compensation claims, the emphasis in motor accidents claims is for claims to be notified, particularised, issues identified and disputes prepared before an application is filed in the Commission. The Motor Accidents Division has also adopted a similar process to the Workers Compensation Division of early allocation to a member and a teleconference date set at the time the application is filed. Multiple teleconferences can be held in appropriate cases, but the overarching aim of these changes is to improve the lifecycle of disputes within the Commission which in turn fulfills the objects of the MAI Act and is in furtherance of the “guiding principle” in the PIC Act.
Under the MAI Act, damages are limited to non-economic loss and only a few heads of economic losses. Treatment and care is met under the statutory benefits scheme and cannot be included in the damages claim. No damages at all can be awarded if a claimant’s only injuries are ‘minor injuries’. Disputes about minor injuries are dealt with in the Commission by Medical Assessors.
Non-economic loss damages can only be awarded if there is agreement or an assessment of whole person impairment at greater than 10%. Disputes about whole person impairment are dealt with in the Commission by Medical Assessors.
Damages claims are long tail claims where a lump sum is awarded once and once only. A claimant cannot come back for more. Most claims resolve within 3–4 years when injuries have stabilised and losses can be predicted with some certainty.
Damages claims are subject to entry level time limits that is, a damages claim cannot be made until 20 months after the accident and parties must have used their best endeavours to settle the claim before referring it to the Commission. There are also three-year limitation periods for both referrals to the Commission (s 7.33 of the MAI Act) and the Court (s 6.32 of the MAI Act).
For these reasons, the Commission has established a stood over list pursuant to r 101 of the Personal Injury Commission Rules 2020, enabling a damages claim under the MAI Act (or the MAC Act) to be stood over while medical disputes are determined or an injured person completes their accident-related treatment or for other reasons.
There are other matters which can be brought to the Commission in relation to damages claims. If an injured person does not have a lawyer acting for them, any settlement they reach with the insurer must be approved by the Commission (s 6.23 of the MAI Act). This is an important safety net for those who are self-represented.
If a claim is referred to the Commission late then a “full and satisfactory explanation” must be provided to a member before leave to commence proceedings is given (s 7.33 of the MAI Act).
Statutory benefits disputes
There are 25 different types of merit review matters listed in Sch 2 of the MAI Act, five types of medical assessment matters and 17 individual miscellaneous claims matters. Time does not permit an examination of each of them, but they follow the same model of application, reply and preliminary conference. The majority of merit review matters and miscellaneous claims assessments are resolved on the papers.
Some of the disputes around liability for statutory benefits (for example whether a claimant is wholly or mostly at fault) will require a hearing to ensure that the issue of liability is not re-litigated in the damages claim. It is a balancing act as to how to proceed because the liability decision in a statutory benefits dispute is not binding in the common law claim but, when the whole third-party compensation scheme is considered, a robust decision made in the statutory benefits claim with all relevant information before the member is ideal.
The parties have the ability to obtain documents from third parties through the Directions to produce process under Pt 5.3 of the PIC Rules and a sealed Direction to Produce is having greater results than signed directions under s 100 of the MAC Act or s 7.43 of the MAI Act.
Division 5.4 of the PIC Rules provides for the issuing of a summons to attend a conference or hearing in proceedings lodged in the Commission however section 51 of the PIC Act replicates s 102 of the MAC Act and s 7.45 of the MAI Act limiting the reach of the summons. Presently, only parties to the assessment (the claimant and the insurer – not the insured) can be compelled to attend, witnesses can be asked to attend but they cannot be summonsed.
Disputes about ‘minor injury’ and ‘whole person impairment’ are medical assessment matters determined by the Commission’s Medical Assessors. Other medical disputes include treatment and earning capacity.
Access to medical assessments is by either of the parties making an application, the other party replies and a review is undertaken of the file within the Commission before medical examinations are arranged with Medical Assessors of the appropriate speciality.
One further assessment is permitted and ‘appeals’ are made by way of an application for review. The gatekeeper role is performed by a delegate of the President.
In terms of the review of a medical assessment, the MAI Act has been amended to achieve harmonisation with the workers compensation medical appeals process in that a legally qualified member of the Commission sits with two Medical Assessors. Early signs are that this is working well and achieving good quality decisions amenable to both parties.
One of the fundamental differences between the Workers Compensation Division and the Motor Accidents Division is the mechanism of payment for legal and medico-legal work undertaken by lawyers acting for parties to a claim.
In disputes before the Workers Compensation Division, the parties will have obtained their grant and will know what costs they can incur before proceedings are commenced. In the Motor Accidents Division in common law claims under both the MAC Act and the MAI Act, Members are only empowered to assess the costs of the claimant and only on the resolution of the claim. In MAI Act statutory benefits disputes costs are generally limited and restricted to disputes where proceedings have been commenced and any costs are assessed at the end of the dispute. This can upset the upfront preparation of claims because, understandably, practitioners are unwilling to commit to incurring significant costs and disbursements before any entitlement to those costs is triggered.
There is a stand-alone jurisdiction for Members to determine entitlement to costs under s 8.10 and Merit Reviewers to determine the quantum of costs under Sch 2(1)(aa) of the MAI Act. The Commission assigns these disputes to Members who also hold an appointment as a Merit Reviewer to ensure efficiency.
It is apparent that the dispute resolution processes work well for the different types of matters that come before the Commission. It is often said that alternative dispute resolution processes exist in the “shadow of the law”. The enabling legislation sets parameters around each of the dispute resolution processes. In workers compensation, there is a long and settled line of authority in virtually all areas of the workers compensation jurisprudence that assists those involved in the process to explore resolution or alternatively, in the case of arbitration, for the Member to determine the matter. So too in the Motor Accident Division, the MAC Act jurisprudence, having formed almost entirely from the common law is well settled. The MAI Act is still relatively new and many of its provisions yet untested in the courts, particularly in the statutory benefits regime.
Returning to the principal mode of dispute resolution in the Workers Compensation Division, namely by virtue of the provision of Sch 3 Pt 5 of the PIC Act (the former s 355 of the 1998 Act) a dispute can more rapidly proceed through the Members’ dispute pathways as there is no need or necessity for the Member who has attempted to conciliate to then be disqualified from the hearing of the contested arbitration. This means that there is no delay occasioned by the referral of the matter to another Member. In the Motor Accidents Division while there is presently no recognised “con/arb” model, the Motor Accidents Member is still required to encourage resolution of a dispute before determination. In many ways the model is similar with different nomenclature but the same aim.
Further, given that this system of dispute resolution has been in place for 20 plus years in both jurisdictions, it is evident that the practitioners are exceedingly used to and familiar with this approach and are consequently very skilled in the conduct of these personal injury matters. As stated above, any concerns about the hybrid model which may be held by the purist ADR practitioner must be viewed in the context of the statistics. As discussed, it is a system that works. In many respects this approach is consistent with the policy approach taken by the government long ago to remove these matters from a dedicated court and place them into a tribunal with a focus on early dispute resolution and flexible processes.