Edition No.27
This edition was issued on 19 April 2022
Welcome
Hello Everyone,
Welcome to the latest edition of the Personal Injury Commission News. This edition provides updates on three key topics which will be of great interest to users and practitioners of the Commission.
The first relates to rule changes which are likely to commence on or shortly after 29 April 2022. At the end of 2021, the Commission’s Rule Committee commenced its initial review of the Personal Injury Commission Rules 2021 (the Rules). Consultation was undertaken with the profession, and the Rule Committee has been working diligently this year to review the Rules.
The overwhelming impression of both the Rule Committee and practitioners is that the Rules, in large part, are working as intended. The incoming changes can thus be seen to be enhancing the operation of the Rules for the benefit of all concerned.
There is however, one substantive change as a result of a legislative amendment which took place late last year. An unintended consequence of the passage of the Personal Injury Commission Act 2020 was the incapacity for any discretion to be exercised to receive an application or an appeal outside of the 28-day period. The Parliament has addressed this issue and the Rules will now provide for the mechanism for late applications or appeals to be received. I know this has been of great concern to the profession, and with the passage and commencement of this rule, that concern will now be allayed.
Secondly, I would draw your attention to a case recently decided by Principal Member Harris and Medical Assessors Dixon and Stubbs in the Motor Accidents Division. The decision in Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76, dated 5 April 2022, has found that there is no jurisdiction for the Commission to entertain a claim for future medical treatment under the Motor Accident Injuries Act 2017. The Commission is currently considering how it will identify and manage affected claims and will provide further details soon.
Lastly, I provide an update on the recommencement of in-person dispute resolution events at the Commission’s newly-renovated premises from this week and the measures in place to keep participants attending safe.
I will be in touch with another edition of Personal Injury Commission News soon.
Regards,
Judge Gerard Phillips
President
Changes to Personal Injury Commission Rules
The Committee resolved unanimously to implement the following changes to the Rules:
- Amending rule 49(3)(b)(iii) and (iv), which provides for compliance with a direction for production, to remove reference to a repealed section and to create a single subrule 49(3)(b)(iii).
- Amending rule 67, which provides for material to be lodged in applicable proceedings, to:
(a) ensure consistency in procedure across the Workers Compensation Division and Motor Accidents Division;
(b) require material to be lodged not later than 14 working days before a medical assessment;
(c) require, in certain circumstances, a party to attempt to obtain consent, whether or not successful, from all the parties to proceedings before the decision maker considers whether to grant leave to the party to lodge additional documents; and
(d) omit subrule 67(5).
- Amending rule 69(2)(b), which provides for the fixing of time for applicable proceedings, so that it is consistent with the recent legislative amendments made to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998, introduced by the Customer Service Legislative Amendment Act 2021 (the amending Act).
- Amending rule 97(2), which provides for persons under legal incapacity, so that the definition of a person under legal capacity is consistent with the recent legislative amendments introduced by the amending Act.
- Amending and reordering rule 105(1)(a) and (b), which provides for an application for assessment of a medical dispute, to provide clarification that an application to refer a medical dispute for assessment, other than a dispute about a decision of an insurer, may be made at any time.
- Amending rule 106(3)(c), which provides for service of applications and replies, so that a respondent may lodge a reply to an application to refer a dispute about a non-binding opinion of a Medical Assessor, as referred to in section 7.27 of the Motor Accident Injuries Act 2017; within 21 days of registration of the application, instead of 14 days.
- Amending rule 109, which provides for the procedure for the lodgment and admission of surveillance recordings for referral to a Medical Assessor in medical assessment proceedings, to:
(a) omit rule 109(1) and (2) and replace with a modified rule to reflect actual practice in the Commission and to extend the application of the rule to provide for both Divisions;
(b) require a party to lodge a surveillance recording that is relevant to the issues in the proceedings, together with a description of other surveillance recording material in the party’s custody or control and the reason why it is not relevant to the issues in the proceedings;
(c) require a party to serve the entire surveillance recording on the other parties; and
(d) provide that rule 67 must be read with rule 109, where a party seeks to refer a surveillance recording to a Medical Assessor and it has been lodged as late material.
- Amending rule 114 and rule 127 to enable SIRA to intervene in Merit Review Panel proceedings.
- Amending rule 123 and rule 129 to give effect to amendments introduced by the amending Act. The amendment inserts a cross-note to refer parties to a new consolidated rule (rule 133A) dealing with the procedure for an application to extend time.
- Creating a consolidated new rule 133A to give effect to amendments introduced by the amending Act, that provides for rules to be made to enable time to be extended in respect of certain applications. The new rule 133A will provide that:
- an extension of time may be made in respect of Presidential Appeal Applications under s 352 of the Workplace Injury Management and Workers Compensation Act 1998, Medical Review Applications under s 63 of the Motor Accidents Compensation Act 1999, Merit Review Applications under s 7.15 of the Motor Accident Injuries Act 2017 (MAI Act), and Medical Review Applications under s 7.26 of the MAI Act.
- certain decision-makers may extend time to lodge these applications where, in exceptional circumstances, satisfied that to lose the right to make the relevant application would work demonstrable and substantial injustice. This rule has been based on the former rule 16.2(5) of the Workers Compensation Rules 2011, which operated well and has been interpreted by appellate courts.
These changes are a welcome enhancement to our operations. The decisions of the Rule Committee have been communicated to the Parliamentary Counsel’s Office who will now proceed to finalise and publish them.
Treatment and Care Disputes - Important Decision
- neither a Medical Assessor nor a Panel has any power to determine a claim under section 3.24 of the Motor Accident Injuries Act 2017 (MAI Act) (or at all), about future treatment and care expenses in relation to a motor vehicle accident; and
- a Medical Assessor and a Panel can determine a claim under section 3.24 of the MAI Act, about treatment and care expenses incurred in connection with providing treatment and care for the injured person in relation to a motor vehicle accident.
A link to the Decision is here:
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWPICMP/2022/76.html
The Commission is considering how it will identify and manage affected claims and will communicate how it will address them soon.
Recommencement of In-Person Dispute Resolution Events
The Commission is recommencing in-person dispute resolution events this week, following the renovation of our 1 Oxford Street premises. A small number of conferences and hearings are scheduled to occur each week in the new, large President’s Courtroom on Level 21, with further in-person event types including mediations scheduled to recommence onsite in other renovated hearing rooms from mid-May.
Following a detailed risk assessment, a comprehensive suite of safety measures has been implemented to ensure these events can proceed safely while pandemic conditions continue. I seek the profession’s assistance in ensuring you and your clients are aware of and abide by the safety requirements. These include:
- External participants must be double vaccinated and provide evidence of their vaccination status
- External participants must attest that they have conducted and received a negative result for a Rapid Antigen Test in the 24 hours before their event and that they are not a close contact or experiencing symptoms of illness
- All participants must wear face masks at all times while on the Commission premises except when required to speak during an event
- Participants must maintain 1.5 metres between each person in all settings in the Commission premises, where reasonably practicable to do so including in all dispute resolution event venues
- External participants are not able to eat or drink on the Commission premises, except to drink water from their own water bottles
- Movement will be restricted (and may be the subject of directions) for relevant Commission staff, decision makers and external participants
- External participants will only be permitted to attend the Commission’s premises for the purposes of the dispute resolution event and attend the floor/venue applicable to the event. They will not be permitted to move around floors or access any other areas of the premises while attending the event
- Density limits will be enforced
- Security personnel will be present to assist in control of restricted movement
- External participants will be directed to attend the premises (and the specific dispute resolution event venue) at a specific time and to leave as soon as their business at the Commission is completed
- Witnesses will attend the premises for as short a duration as possible to deliver their evidence. This requirement will be supported by a direction to parties to (1) submit a witness schedule that facilitates this outcome and (2) ensure that the schedule is negotiated/agreed with their opponent and is realistic.
Procedural Direction PIC10 – Hearings During Covid has been updated to reflect the new safety settings and has been published to the website.
I look forward to safely welcoming parties back to the Commission premises for their scheduled events.
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