Speech by the President to the NSW Self Insurers AGM

President’s Address to the NSW Self Insurers

Delivered by President, Judge G.M. Phillips

Thursday 31 October 2024

Good morning, it is a real pleasure to join you this morning at your annual general meeting.

I have a number of topics to cover, including a brief update on the new Commission Division, some matters of practice and procedure – the 500-page rule and interlocutory appeals. I then will say some things about the Court of Appeal decision in Skates, which everybody in this room should be across.

Police Officer Support Scheme Division

As you may be aware, the Police were exempted from the 2012 amendments to the Workers Compensation Acts, so they retained the pre-2012 rights. In addition, the Police had the Police Blue Ribbon Support Scheme which provided for benefits and lump sums over and above their workers compensation rights. Now workers compensation disputes about Police Officer injuries have always been heard in the Personal Injury Commission (Commission) and its legacy Commissions. Disputes about the Blue Ribbon Scheme were not.

The Blue Ribbon Scheme was brought to an end for a number of reasons that I do not need to go into. The Police Act was amended and on 27 September 2024, the Police Officer Support Scheme commenced. The amended scheme provides for workers compensation-like benefits over and above the usual Police workers compensation benefits. The power or authority to decide disputes about the new scheme was vested in the Commission and a new Police Officer Support Scheme Division was created. This became the Commission’s third Division. We have been advised that the volume of claims is not likely to be high, the officers involved generally will have been catastrophically injured or will have one of a number of issues under the new scheme in dispute, but the cases are likely to be complex both factually and legally. I am appointing a number of dual members – that is with appointments to both the new Division and the Workers Compensation Division – as it is likely that two cases, one under the WC legislation and the other under the Police scheme, may need to be heard together.

We are looking at what changes we may need to our rules and PD’s to accommodate this new work stream.

The Police scheme is separately funded from the workers compensation and motor accidents work.

This is an interesting and exciting development. The design of the Commission was based on NCAT – which has 6 Divisions. It was envisaged by the drafters that the expansion of the Commission could happen, namely by the creation of a new Division and this is what has occurred.

Practice and procedure

Introduction of the 500-page rule

I know everyone in this room are avid readers of PIC News, so you will all be aware that the 500-page rule commences on Monday 25^th November 2024. There is no grace period, there is no transitional period, when it commences it is game on. The changes commence on that day in respect of proceedings filed on or after 25 November 2024.

For everyone here it means this – if an application or a reply is filed containing more than 500 pages of supporting documents, Registry will reject it. If the bundle is NOT paginated, indexed and sorted into categories, the Registry will reject it.

If the case needs more documents over the 500-page limit, you get to make one Application to Lodge Additional Documents, the acronym is new, it’s called an ALAD. The ALAD is filed online. You will have space in the ALAD to say why the additional documents ought be received. This additional bundle also must be paginated, indexed and sorted into categories.

The receipt of the further material will depend on either party satisfying a very simple test – namely by showing how the additional documents relate to the real issues in dispute.

We are NOT reintroducing the rules of evidence. Please disavow yourselves from thinking that we will be entertaining submissions about relevance, hearsay or the like. Go to the Personal Injury Commission Act and read the s 3 Objects and ss 42/43, the Guiding Principle, these are the principles you should be concerned with, not the Evidence Act. The question is how do the extra documents facilitate the just, quick and cost-efficient disposition of the real issues in dispute?

In workers compensation matters, I would expect that the first document that reference should be made to in almost every application for additional material is the s 78 Notice. I will have something to say about the Court of Appeal decision in Skates a bit later, but what is clear from Skates is this. The Commission does not have inherent jurisdiction. The Commission’s authority to decide disputes depends upon the existence of a dispute between the parties. In workers compensation, the issues in dispute are those which are contained in the s 78 Notice. So I would be pointing to that Notice and then relating the additional documents you need to the dispute as articulated in that Notice.

A few things to bear in mind. We are not making this burdensome. If the reasons in the application are compelling, once the other side has responded, we can decide this on the papers. Or the Member allocated the matter may deal with it orally at the PC or at the hearing. The ALAD can be lodged online, either with the Application or Reply or at a later time. Please note the time limits in rule 67C; the additional documents need to be filed 14 days prior to a medical assessment or 3 days before all other events. I would remark that too many medical assessments are disrupted and delayed by thousands of pages of late documents coming in. This will be strictly enforced as the medical assessors need adequate time to read the material before the medical examination.

As I said above, the counter party to an Application to Lodge Additional Documents will be given an opportunity to say why the documents should (or should not) be received – but that reply must be supplied swiftly – usually 2 days will be given to respond to the application.

One new matter to note is this – there is in rule 67C(5) a prohibition on introducing further material AFTER the medical assessment has taken place. The introduction of material after a medical assessment is simply incompatible with the objects of the PIC Act or our dispute model.

Under the new rule, the Member retains the discretion to receive documents over and above what is in the Application, Reply or the ALAD. Rule 67D(1) retains that decision-maker’s discretion. The principle regarding admission is the same – how does it relate to the real issues in dispute?

In reality there is no limit on the material any party will need to fairly and justly prosecute their case. The purpose of the rule is to eliminate documents that are unrelated to anything in dispute, duplicates or just plain useless.

One other part of the rule I would draw your attention to is this – rule 67D(2). If you do not refer to a specific document in submissions, the Member is not required to have regard to it. A submission which is to the effect that “we rely on everything we have filed” is completely insufficient to get around this rule, which is directed to requiring a party to specifically refer to documents. The Court of Appeal regularly gives full faith and credit to the Commission’s statutory rules so if a document needs to be addressed on, make sure you do it.

The whole aim of the new rule is to support the Commission in meeting its statutory mandate of resolving the real issues in dispute, justly, quickly and cost effectively.

And obviously, anyone can ask for relief from the rules under rule 6 or it can be granted by the Commission on its own motion.

But bear this is mind for the larger cases involving death claims or catastrophically injured workers. The debate about extra material will not be so much about numbers of pages, rather the approach will be more akin to case management – making sure that the decision-maker and the parties do have everything they need to argue and decide that dispute. But even in these cases, we do not want and we will exclude multiple copies of the same document and material which is otherwise unrelated to the issues in dispute.

Interlocutory appeals

I expect that there may be appeals against decisions under rule 67, most likely those decisions declining to admit a document(s). This will probably occur more often during the initial arguments while everyone gets used to this new rule and its operation.

As you know, any appeal against an interlocutory decision in the Workers Compensation Division receives a swift in-person hearing before me or one of the Deputy Presidents. Last week one was filed I think on either the previous Friday or Monday and I heard it in person on the Thursday, delivering an ex tempore decision the same day. So if you are an applicant or respondent to an interlocutory appeal on the 500-page rule, be ready, it will be listed for hearing very quickly.

This is of course applies to all appeals against interlocutory decisions – we have been following this process for the past 2 years.

Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates)

The starting point before I get to a discussion about Skates is s 319, Part 7, of the 1998 Act.

“In this Act—

medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—

(a)      the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b)      the worker’s fitness for employment,

(c)      the degree of permanent impairment of the worker as a result of an injury,

(d)      whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e)      the nature and extent of loss of hearing suffered by a worker,

(f)       whether impairment is permanent,

(g)      whether the degree of permanent impairment of the injured worker is fully ascertainable.”

In Skates, Leeming JA said the following in the Court of Appeal”

“44. The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.

45. In the present case Mr Skates’ ‘Application to Resolve a Dispute’ was received by the Commission on 8 August 2017. It described his injury as ‘Injury to left wrist, ring finger and scarring’ and stated that he had a permanent impairment of 18% by reference to ‘Left upper extremity, joint ring finger and scarring’. A medical report accompanying Mr Skates’ application from Dr O’Keefe stated that the whole person impairment had been assessed according to the ‘new WorkCover 4 guidelines’, and that insofar as it was based on his ‘left upper extremity’ it comprised impairment to the wrist and ring finger by reference to particular figures in the AMA5 Guide. Mr Skates’ application also included a letter from the workers compensation insurer dated 11 July 2017. The letter referred to the claim and Dr O’Keefe’s assessment of whole person impairment of 18% based on ‘Left upper limb (wrist, ring finger) 15% WPI’, ‘Scarring 3% WPI’. The letter stated that it had arranged for Mr Skates to be examined by Dr Panjratan, whose assessment was ‘Left upper limb (wrist, ring finger) 11% WPI’ and ‘Scarring 1% WPI’ yielding a total of 12% WPI, and it made a settlement offer on that basis.

46. The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.

47. Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.

48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.

49. The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.

50. The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.”

As can be seen, the fundamental legal concept is a dispute. In Skates it was held that the scope of the dispute was crystalised by the exchange of material between the parties. This in workers compensation will include the s 78 Notice. You all know the requirements for a proper and valid s 78 Notice. Skates if anything heightens the need for a carefully drafted s 78 Notice.

Skates was confirmed by the Court of Appeal in Scone Race Club Ltd v Cottom [2024] NSWCA 34. The principles in Skates have also been applied to the Motor Accidents legislation in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71.

The 500-page rule very neatly complements the decision in Skates – given that the power to decide only relates to matters in dispute, it is only logical that documents that go to those matters in dispute be before one of our decision-makers.

I think Skates is one of the most important decisions in workers compensation jurisprudence in the past 20 years. It directs attention and focus on case preparation and what the decision-maker must be concerned with, and what they must set to one side. I commend a close and thorough reading of it to you all.

That concludes the areas of interest that I wanted to cover with you all this morning, I am very happy to take any questions that you might have.

Judge G.M. Phillips

President, Personal Injury Commission of New South Wales