Edition No.33

Welcome

Welcome to the latest edition of the Personal Injury Commission News.

This edition presents updates on the continuing impact of the pandemic on the Commission’s operations, including in-person medical assessments, plus updates on the Commission’s virtual and hybrid events, and expectations of practitioners participating in them. I also provide an update on changes to the Stood Over List, information on the review of the Personal Injury Commission Act 2020 and set some further expectations regarding practitioner and insurer behaviour when engaging with the Commission and its services.

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

Regards,

Judge Gerard Phillips  
President

Continuing Impacts of the Pandemic on Commission Operations

The pandemic has now been current for more than two years. This year has been especially difficult for our community as it has had to cope with the ongoing effects of the pandemic, a very bad flu season, floods and strikes. The accumulation of all of these matters has made many aspects of daily work life much more difficult. Both the Commission and many law firms and barristers’ chambers have had to contend with staff illnesses and absences because of these challenges.

As has been made clear in earlier editions of Personal Injury Commission News, the Commission has acquired a large volume of delayed medical assessments due to the 2021 lockdowns (June to October) and the two-month pause due to the Omicron outbreak in January and February this year. At the present time, the Commission’s medical assessment lists are generally full for the short to medium-term future. I say “generally”, as some spaces do open up due to cancellations. We are having additional capacity coming online with the opening of our Medical Suites which are gradually ramping up their operations. But the Commission simply does not have large numbers of spare medical appointments at this time while we are trying to deal with the pandemic inspired backlog. This is all happening at a time when filings across both divisions which require a medical assessment continue to be made in very healthy numbers.

In short, users and practitioners should expect delays in our medical assessment list. This is an unfortunate and inevitable by-product of the pandemic.

In-Person Medical Assessments

As readers of Personal Injury Commission News will be aware, the Commission has kept the changing public health situation under close consideration. We have made decisions from time to time consistent with the government’s directions and health advice.

As discussed above, the pandemic has caused great disruption to the Commission’s medical examinations, and we have accumulated a backlog of cases awaiting an examination. Such examinations, when conducted in person, breach social distancing for the hour or so of the examination.

The measures we have taken to mitigate the risk of infection have worked very well due to the professionalism of the Commission’s medical assessors, staff and the active co-operation of all claimants. In short everyone has played by the rules and kept each other safe.

We are now entering the next set of twists and turns of the pandemic. Different strains are now circulating around the community, and they are quite contagious.

The Commission is monitoring the situation very closely. Whilst we would prefer not to pause or suspend in-person examinations, if the public health situation continues to deteriorate, we may have no choice.

At present our aim is to continue in-person medical assessments. To assist in keeping these examinations in operation, we urge all claimants to have their booster shot(s) before the scheduled examination. Our medical advice is that this is the best step anyone can take to protect themselves and others.

With the backlog of cases we are trying to clear, each medical examination is important. We are losing too many examinations where claimants either fail to turn up or there is a very late cancellation. When this happens, we cannot use the appointment for another claimant. This will simply increase the time it takes for us to deal with the backlog. Can all practitioners please advise their clients to tell us as soon as it becomes apparent that they cannot attend an examination.

If circumstances change and decisions must be made about in-person medical examinations, we will endeavour to give as much notice of the terms of any change. But please encourage your clients to have their booster, that will help our aim in keeping examinations going through the current difficulties.

Preliminary Conferences/Hearings on MS Teams

As has been announced in earlier editions of Personal Injury Commission News, the Commission has transitioned to a single digital platform for delivery of its dispute resolution and hearing events, that is MS Teams.

Claimants and their solicitors should ensure that the Commission is provided with the full names of all representatives attending virtual events in the Commission. This is particularly the case with insurer representatives.

Secondly, unlike previous platforms that we have used, the MS Teams platform is activated by the link that you have been sent from the Commission. There will be no operator calling the participants and admitting them to the event, this is all done seamlessly through the MS Teams link that is sent to all participants. We have had a number of instances recently, and this seems to be a bigger problem in the Motor Accidents Division, where practitioners have failed to join the conference thinking that they would be called by the Commission.

When you ‘click’ on the MS Teams link, a panel will come up notifying you that you will be admitted to the conference as soon as it commences. The Commission decision-maker will admit you to the conference and then the conference will commence.

Requirements for Practitioners at Virtual and Hybrid Hearings

Obviously during the pandemic virtual hearings have for the past two years replaced in-person hearings. As from 1 June, the Commission has re-opened a small number of its hearing rooms and as at the date of this Personal Injury Commission News we have conducted in excess of 150 in-person hearings.

Virtual or hybrid hearings however will remain an ongoing aspect of the Commission’s operations. Indeed, the skills learnt during the pandemic meant that during the recent strike and flood events it was a relatively easy thing for matters which were going to be heard in person to be seamlessly transferred to a virtual hearing mode to accommodate the difficulties of those circumstances.

Unfortunately, some practitioners continue to appear in virtual hearings wearing inappropriate attire. Any hearing, whether in-person, virtual or hybrid, requires practitioners to wear appropriate business attire. It is disrespectful to the citizen whose case is being heard and to the Commission for practitioners to be appearing in casual dress.

Members have been given the following direction. In the context of a virtual or hybrid hearing, if a practitioner is inappropriately dressed, the Member will immediately stand the matter down for ten minutes to enable the practitioner to correct this situation. Whilst the Commission as a tribunal has a statutory mandate to conduct proceedings informally and with little regard to legal forms, this informality simply means that the rules of evidence do not apply. It does not apply to how practitioners dress.

Changes to the Stood Over List

1. From 1 September 2022 the Commission will no longer be sending reminders to parties of the upcoming Stood Over List expiry date. As the Stood Over List has continued to grow, the sending out of reminders by the Commission operationally has added an administrative burden. Practitioners are reminded to diarise the expiry date and contact the Commission to request that the matter is either restored or the time extended in the Stood Over List. Please note if the Commission does not hear from the parties before the expiry date, the matter may be dismissed.
2. There are some claims assessment matters which are currently before a Member, that have been impacted by the current delays in medical assessments at the Commission. Those claims assessment matters which are delayed for more than six months due to a delay in the medical assessment proceedings, will be referred by the Member to the Stood Over List to be actively case managed. Once the medical proceedings have been finalised, the matters will be restored and referred back to the original Member for assessment.

Review of the Personal Injury Commission Act 2020

The first review of the Act commences in August 2022. It will be conducted by the State Insurance Regulatory Authority.

Complaints Etiquette

The Commission is more than happy to receive complaints from users and legal practitioners. The Commission is still very early in its life, having opened on 1 March last year. Not only are complaints useful for identifying issues with individual matters, but they also serve a worthwhile purpose of identifying aspects of the Commission’s operations which could be enhanced or improved.

However, a small number of the complaints which we have been receiving in recent months have been drafted in a manner which is neither professional nor acceptable. Practitioners are reminded that for the purposes of the Uniform Conduct Rules, statutory tribunals such as the Commission satisfy the definition of a “court” and as a consequence practitioners owe all of the duties to the Commission that are owed to the courts. This requires the maintenance of high standards of professional conduct and an overriding duty to assist with the administration of justice.

We understand the pressures that practitioners are under due to the pandemic and the resulting delays. This can be stressful for clients, who then feed that stress and anxiety onto their lawyers. However as we learn to live with the continuing effects of the pandemic, appropriate levels of professional behaviour must be maintained. The majority of practitioners continue to comply with their professional obligations, but a small and unfortunately growing group are not. Please consider this to be a timely reminder to practitioners to maintain appropriate standards of professional behaviour.

Insurer representatives

In recent editions of Personal Injury Commission News, we have drawn practitioners’ attention to changes in Procedural Directions regarding the necessity for insurance company claims managers to attend Commission preliminary conferences, hearings and mediations. This was necessitated by a number of matters failing to resolve due to the respondent’s inability to obtain instructions from their insurer client.

Notwithstanding this recent communication, we are still seeing instances where insurers appearing in the Commission are not properly instructing their lawyers due to the absence of the claims manager. This practice simply must cease. It is disrespectful to the claimant, and it inhibits the Commission from meeting its statutory mandate to be just, quick and efficient. This is a matter which is important to the Commission’s operations and will be subject to close supervision in the near future. The Commission expects to see an immediate and positive improvement in insurer claims manager attendance at all preliminary conferences, hearings and mediations.

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