Edition No.18

Welcome

Welcome to the latest edition of Personal Injury Commission News. I trust that you are keeping well and having the opportunity to begin safely re-engaging with many of the activities we missed during lockdown.

This edition provides information regarding the extension of the Commission’s safety protocols for in-person medical assessments to 14 December 2021 and the role that legal practitioners need to play to ensure scheduled appointments can proceed. I also share news about the progress of amendments to the Personal Injury Commission Act 2020 and a recent outcome regarding federal jurisdiction in the District Court. This edition also includes reminders about how to submit Directions for Production, the Commission’s end of year arrangements and where to seek technical assistance with the Commission’s systems when required.

I will be in touch with another edition of Personal Injury Commission News soon.

Regards,

Judge Gerard Phillips

President

COVID-19 Safety Requirements for In-Person Medical Assessments Extended to 14 December 2021

Due to the progress in vaccinating the people of NSW and the relaxation of mobility restrictions, the Commission recommenced in-person medical examinations for physical injuries from Monday 25 October 2021, provided certain vaccination and testing requirements are met.

These arrangements will now continue until 14 December 2021 in line with the NSW Government’s recent decision to restrict the participation of unvaccinated people in many face-to-face settings until that date.

In summary, in-person medical assessments scheduled up to and including 14 December 2021 can proceed in situations where:

• The Medical Assessor and their staff are fully vaccinated (and received their second vaccine dose at least two weeks prior) and COVID-19 safe protocols are in place in respect of physical distancing, hygiene and cleaning, and administrative controls at their premises, and

• The injured claimant or worker is fully vaccinated (and received their second vaccine dose at least two weeks prior) and:

- have provided evidence of their vaccination status to the medical assessor via email at least a day before the examination, and

- provide a negative COVID-19 swab result for a test administered within 72 hours of the medical assessment.

Support persons are unable to attend the appointment unless approved by the Commission. Applications for a support person to attend the appointment can be made to the President or Principal Registrar in writing and must include the reasons and confirmation that the support person meets the same vaccination and negative COVID-19 swab test result requirements as the claimant or worker.

The participation of an interpreter to be in-person, rather than by telephone or video-conference, also requires approval and the submission must include the reasons that in-person attendance is necessary.

Claimants or workers who are scheduled to attend in-person medical assessments need to comply with the requirements set out in the Protocol for Medical Assessments Conducted During Pandemic and Procedural Direction PIC11 – Medical Assessments Procedure – COVID-19 that are available on the Covid-19 Response page on the Commission’s website.

Since recommencing in-person assessments, the majority have proceeded very efficiently with both the claimants or workers and their legal advisers ensuring that the requirements in order to safely undertake the examinations were complied with.

Unfortunately this has not universally been the case. Over 80 in-person examinations have not been able to proceed. While the majority have been due to claimants or workers not being fully vaccinated, there have been instances where the legal practitioner has not advised the claimant or worker of what they need to do and the appointment has not been able to proceed.

As practitioners know, consequent upon the COVID-19 lockdowns in 2020 and 2021, we have both inherited and accumulated quite a backlog of medical assessments. A missed appointment, for any reason, simply means that it will take far longer than would otherwise be the case for the backlog to be dealt with and normal operating conditions re-established.

The Commission’s Medical Services staff are working tirelessly to allocate in-person assessments and to provide parties with as much notice as possible. We do need the profession and their clients to work with us to ensure that the requirements to safely undertake these examinations are dealt with in a timely manner. We also ask that you inform the Commission promptly if your client cannot meet the requirements so that the appointment can be cancelled, and when possible, allocated to another matter.

COVID-19 testing is available state-wide and testing locations are publicly available on the nsw.gov.au website. Your clients should not have any difficulty, regardless of where they are located, to obtain the required evidence of their COVID-19 status.

The current arrangements are in place for all assessments arranged by the Commission at any location and the testing requirement is for a COVID-19 swab test and not rapid antigen testing. The Commission will review and advise regarding its position for assessments scheduled for after 14 December 2021 in the coming weeks.

Amendments to the Personal Injury Commission Act 2020 Pass the Lower House

The Customer Service Legislation Amendment Bill 2021, which makes miscellaneous amendments to multiple Acts, including the Personal Injury Commission Act 2020, was passed by the NSW Parliament’s lower house yesterday. The reforms cover amendments to various legislation to correct minor drafting errors, deliver on Government commitments, make consequential amendments following the establishment of the Personal Injury Commission and make new minor amendments that support COVID-19 economic recovery.

The key amendments that will positively impact the Commission’s services and operations when assented to are:

• The Commission’s discretion to accept appeals in Workers Compensation matters beyond the 28-day period, which was not included in the original Act, will be restored
• The Commission’s discretion to accept review applications in Motor Accident matters beyond the 28-day period, which was not included in the original Acts, will be restored
• Medical examinations will be allowed to be undertaken outside of NSW
• Hearings will be allowed to be undertaken outside of NSW

I will keep you updated on the progress of the Bill and when the changes will come into effect.

Federal Jurisdiction

The Commission does not have jurisdiction to hear and determine ‘compensation claims’ which involve an exercise of federal jurisdiction as contained within s 75(iv) of the Commonwealth Constitution - these being matters between States, or between residents of different States, or between a State and a resident of another State.

The District Court of NSW has recently made its first decision regarding a federally-impacted matter in Matthew Ritchie (plaintiff) v the Nominal Defendant (defendant) No 2021/117151. The Personal Injury Commission Act 2020 requires such decisions to be made by the District Court. This is the Act operating as it was intended.

I also refer you to Personal Injury Commission News Edition No. 17 for further information regarding federal jurisdiction.

Reminder: Directions for Production Must Be Submitted Electronically

Legal practitioners who are issuing Directions for Production must advise the relevant party that the requested documents need to be sent to the Commission via digital means and not via the Commission’s street address or PO box.

Please ensure that when conducting service on the producer your letter should state that production of documents must be by email to [email protected] and if that is not possible, the producer must contact the Registry on 1800 PIC NSW (1800 742 679) to organise alternative arrangements.

Reminder: Christmas/New Year Closedown – Key Dates

As reported in the last edition of Personal Injury Commission News, the Commission will be operating with reduced staffing from Monday 27 December 2021 to Friday 7 January 2022, with only a small team of front-line staff working remotely across the period.

The key dates and information related to the Commission’s various listings and functions across the period are now available for your reference on the Commission’s website here.

Reminder: Where to Seek Technical Support for the Commission’s Dispute Management Systems and Portals

If you need technical assistance with accessing and using the Commission’s online portals:

• Motor Accidents systems (Motor Accidents Portal, Motor Accidents Decision Maker Portal), please email [email protected]
• Workers Compensation systems (Comcase, MyFiles, Online Lodgment Portal) please email [email protected]

These support mailboxes are monitored throughout the day by our dedicated support teams who will assist you.

Have a question about the Personal Injury Commission?

If you have a question you would like to ask about the Commission, please email us at [email protected]

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