Procedural Direction WC4 – Work injury damages

Introduction

1.    The Commission exercises a variety of pre-trial functions concerning a claim for work injury damages. This Procedural Direction concerns those functions, including:

(a)   threshold disputes;

(b)   pre-filing statement disputes;

(c)   orders for access to information and premises, and

(d)   mediations.

Preliminary

2.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

3.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

5.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).

Applicable legislation and rules

6.    Parties should be familiar with the following provisions:

(a)   Chapter 7 Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b)   Part 5 of the Workers Compensation Act 1987 (the 1987 Act), and

(c)   Divisions 9.2 and 9.3, as well as rules 83, 84, and 85 of the PIC Rules.

Threshold disputes

7.    If the insurer does not accept that the degree of permanent impairment of the injured worker is at least 15% or disputes that the degree of permanent impairment resulting from the injury is fully ascertainable, that is a threshold dispute (as defined in section 313 of the 1998 Act).

8.    In such circumstances, an Application for Assessment by a Medical Assessor can be lodged in the Commission. The application must include:

(a)   evidence that a claim has been made on the defendant or insurer in accordance with any applicable workers compensation guidelines;

(b)   evidence that a threshold dispute exists, and

(c)   all relevant documents that the claimant wishes the medical assessor to consider.

9.    A sealed copy must be served on the defendant within 7 days of the date of registration of the application.

10.    The defendant has 21 days to respond to the application by lodging a Response to an Application for Assessment by a Medical Assessor, attaching all relevant documents that the defendant wishes the medical assessor to consider. If the defendant disputes liability for injury in accordance with any provisions of the 1998 Act, the matter will be referred to a member for determination prior to a medical assessment.

11.    The Commission will refer the matter to a medical assessor in accordance with Procedural Direction PIC6 – Medical assessments.

12.    Following the medical assessment, a medical assessment certificate will be issued to the parties. That certificate is conclusively presumed to be correct. If the proceedings are only for the purposes of a threshold dispute (that is, there is no lump sum compensation or other form of compensation claimed), the Commission will not issue a certificate of determination following the medical assessment certificate.

Defective pre-filing statements

13.    The 1998 Act places certain requirements on claimants and defendants concerning the service of and response to a pre-filing statement. The claimant must comply with the requirements for making a claim, including providing all relevant particulars. The defendant must respond to that claim either by accepting liability and making an offer of settlement, or disputing liability for the claim. There are timeframes that apply under the 1998 Act.

14.    Following the making of a claim, a claimant must serve a pre-filing statement on the defendant before court proceedings can be commenced.

15.    Once a pre-filing statement has been served on the defendant, they can assert that it is defective within 7 days of service. If the claimant does not take steps to cure any defects in the pre-filing statement, or disputes that it is defective, either party may refer the dispute to the President for determination.

16.    Proceedings are commenced by lodging an Application to Cure a Defective Pre-filing Statement. The lodging party must attach copies of the following to the Application:

(a)   the pre-filing statement;

(b)   the defendant’s notification;

(c)   any request for particulars and responses, where relevant;

(d)   notice of claim for work injury damages, and

(e)   submissions detailing the extent to which the claimant disputes the alleged defects.

17.    The Application must be served on the other party, within 7 days of lodging the Application. A certificate of service must be lodged within 7 days of service.

18.    The opposing party may lodge submissions in reply to the Application within 14 days of being served.

19.    On receipt of submissions in reply, or the expiration of the 14-day period, whichever occurs first, the matter will be referred to a delegate of the President (delegate) for determination.

20.    The dispute will generally be determined on the papers. To assist in the resolution of the dispute, the delegate may give a direction for the filing of additional submissions or supporting documents. When determining the dispute, the delegate may:

(a)   give a direction to the claimant as to the action necessary to cure any defect in the pre-filing statement, within a prescribed time, or

(b)   determine that the pre-filing statement served by the claimant is not defective.

21.     If it is determined that the pre-filing statement is defective, and the delegate gives a direction to take action to cure any defect, the claimant must take those steps in accordance with the direction. If those steps are not taken within the time for compliance, the pre-filing statement is taken not to have been served.

Striking out a pre-filing statement

22.     Once a pre-filing statement has been served, it remains current, and the time limit does not run for the purposes of section 151D of the 1987 Act. Section 151D provides a three-year time limit to commence court proceedings for damages.

23.     A defendant may apply to have a pre-filing statement struck out by order of the President under section 151DA of the 1987 Act.

24.     Proceedings are commenced by lodging an Application to Strike Out a Pre-Filing Statement. The Application must attach:

(a)    a copy of the claimant’s pre-filing statement, including all information and documents served with the pre-filing statement, and

(b)    a copy of the defendant’s pre-filing defence, including all information and documents served with the pre-filing defence.

25.     All documents attached must be paginated and indexed. It is insufficient to simply list the pre-filing statement and defence as the documents attached. Each document must be individually indexed.

26.     Submissions must be attached to the application, in sequentially numbered paragraphs, with appropriate sub-headings. The person preparing the submissions must sign them and provide their contact details. Submissions must address the following issues:

(a)    whether the application can be determined on the papers, and if not, why a hearing is necessary;

(b)    the orders sought, precisely identified, and

(c)    submissions in support of the orders sought.

27.     The Application must be served on the respondent within 14 days of lodgment. A certificate of service must be lodged within 7 days of service

28.     The respondent has 21 days from the date of service to lodge a Notice of Opposition. The Notice of Opposition must attach all relevant documents on which the respondent intends to rely that have not already been provided by the applicant. The respondent must attach submissions in accordance with [26]. The respondent must serve the Notice of Opposition and file a certificate of service within 7 days of service.

29.     The applicant may file submissions in reply within 7 days of service of the Notice of Opposition.

30.     A delegate will review the Application and Notice of Opposition to determine if it is procedurally compliant. The delegate may refuse to accept the Application or Opposition, or in the alternative, issue a direction requiring procedural deficiencies to be rectified.

31.     Once the matter is procedurally compliant and all relevant documents have been filed, the matter will be referred to the President for determination. The President may issue a direction calling for further submissions, hold an online conference, or hold a hearing, as the circumstances of the case require. The President may also determine the dispute in the absence of a Notice of Opposition.

32.     If a claimant has established that there is no threshold dispute, he or she may apply to the President for a direction to produce information held by the defendant or for access to the premises of the defendant.

33.     The claimant should first attempt to seek the production of documents and/or access to premises informally, directly from the defendant. In many cases it will be unnecessary to seek a formal order from the Commission. To apply for a direction, the claimant should lodge a Direction for Access to Information and/or Premises in the Commission.

34.     Where the production of documents is sought, the application should particularise the documents with enough detail that the defendant is able to understand the scope of the direction and produce the requested documents. The documents sought should have an apparent relevance to the issues in dispute and likely materially assist in the resolution of the proceedings. Documents should be produced directly to the claimant.

35.     Where access to premises is sought, the application must include the address of the premises, the specified period of access, and the purpose for which access is sought.

36.     The defendant must comply with the direction. Failure to comply without reasonable excuse is an offence.

37.     A defendant may object to any part or all the direction. There is no specific form for lodging an objection. An application may be made in writing to the principal registrar and served on the claimant at the same time. Any objection must be made before the time for compliance specified in the direction. The defendant is excused from complying until the objection is determined.

38.     The claimant may oppose the objection by providing written submissions to the principal registrar and the defendant within 7 days of being served with the objection. If the claimant agrees to vary or set aside any aspect of the direction on receipt of an objection, this should be communicated to the principal registrar.

39.    Written submissions provided by both parties should set out whether the direction should be set aside wholly or in part, or varied, with proposed variations.

40.     On receipt of an opposition from the claimant, or the expiry of the period in which to make an opposition, the matter will be referred to a delegate for determination. Objections are generally determined on the papers based on the written submissions of the claimant and defendant; however, the delegate may also take the following steps:

Access to information and premises

(a)    direct one or more parties to provide further information or submissions, or

(b)    list the objection for a hearing via an online conference (via audio or audio-visual link).

41.     When determining an objection, the delegate may set aside or vary any aspect of the direction, including any matter agreed to by the claimant.

42.     Mediation in the Commission is a fair, unbiased and informal process in which parties, with the assistance of a mediator, can identify the issues in dispute, develop options, consider alternatives, and endeavour to reach an agreed outcome that permanently resolves a claim for workplace injury damages.

43.     Mediators do not have a role of determining the outcome of the claim or advising either party about the substantive outcome of the dispute.

44.     For the purposes of a work injury damages claim, mediation is a mandatory pre-trial step that must be undertaken before court proceedings can be commenced for the recovery of work injury damages. There are two exceptions to this requirement:

Mediation

(a)    a claimant does not need to refer a matter for mediation where the defendant has failed to respond to a pre-filing statement within 42 days after it was served, and

(b)    a defendant may decline to participate in mediation where it wholly disputes liability for the claim.

45.     The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant.

46.     Mediation proceedings are commenced by lodging an Application for Mediation to Resolve Work Injury Damages Claim. The claimant must attach the pre-filing statement, and all information and documents upon which the claimant proposes to rely.

47.     The claimant must serve the sealed application on the defendant within 7 days of registration of the application. A certificate of service certifying service of the application must be lodged within 7 days of the date of service.

48.     The defendant must lodge a Response to an Application for Mediation to Resolve Work Injury Damages Claim with the Commission within 21 days of registration of the application. The response is to attach the pre-filing defence (including all information and documents upon which the defendant proposes to rely), as well as indication as to whether the defendant will decline to participate in mediation under section 318A (3) of the 1998 Act.

49.     Where the defendant declines to participate in mediation where liability is wholly denied a Certificate of Mediation to that effect will be issued by the principal registrar.

50.     As mediation is not a determinative process, any documents attached to an Application or Response should be limited to those documents necessary for the Mediator to understand the issues and for the parties to engage genuinely in the mediation process.

51.     All parties, including the worker and the insurance claims officer, are required to attend the mediation. If the mediation venue is an in-person venue, then all parties and the insurance claims officer are expected to attend in-person. In exceptional circumstances, the Division Head may excuse an in-person attendance on application by a party in writing.   Where the parties consider that the presence of a third party (non-employer) is required to settle the claim, the principal registrar will invite, but cannot compel, the third party to attend the mediation.

52.     Once the Application for Mediation and Response have been received, the principal registrar will direct a mediator to mediate the claim. If the mediator is unable or unwilling to mediate the claim (due, for example, to a conflict of interest), the principal registrar may revoke the direction and direct another mediator to mediate the claim.

53.     The Commission will contact the parties to arrange a suitable date and time for the mediation, which will usually occur within 28 days of the lodgment of the Response (see below for venue selection) This may occur later if third parties are involved in proceedings.

54.     Upon reviewing the file, the mediator may require further information to be filed and exchanged between the parties and/or may issue a summons requiring attendance at a conference. A mediator has all the functions of the Commission under sections 49­–52 of the PIC Act.

55.     Parties will be requested to agree that the mediation is confidential and privileged.

Expectations from the Mediator and Parties

56.     Parties can expect from the mediator:

(a)    a fair, unbiased and informal process providing sufficient time for the parties, with their advisors, to explore options to permanently resolve the claim;

(b)    facilitation of discussions between the parties and their representatives to achieve permanent settlement of the claim on terms arrived at by the parties themselves;

(c)    neutrality, and

(d)    confidentiality.

Venue Selection

57.     The Commission is committed to in-person mediations for all matters, subject to the availability of venues.

58.     The following venue options can be used to conduct a mediation:

(a)    Venue 1 – In-person (when a venue is available)

(b)    Venue 2 – Audio-visual link (using a Commission approved platform)

(c)    Venue 3 – Audio link (using a Commission approved service)

(d)    Venue 4 – Any combination of Venues 1-3.

59.     The Head of Division will determine the venue that will be used in any mediation, and will consider:

(a)    The Commission’s preference for in-person mediations where an in-person venue is available; and

(b)    the Commission’s duties under the Work Health and Safety Act 2011 NSW (and related WHS duties).

60.     The Commission will advise the parties about the venue for the mediation not less than 21 business days before the scheduled mediation date. The Head of Division will consider submissions seeking a change in the mediation venue if the submissions are received by the Commission not less than 14 business days before the scheduled mediation date.

Risk Management Arrangements – COVID-19

61.     Set out below are the COVID-19 style control mechanisms (Controls) that apply to in-person mediations (i.e., Venue 1 or Venue 4 where there is an in-person component). The Controls apply to all persons who attend an in-person mediation, including the presiding mediator. Vaccination, Rapid Antigen Testing, Masks and Hygiene Protocols

62.     An individual cannot participate in an in-person Commission event unless they:

(a)    are double vaccinated with a vaccination approved by ATAGI (The Australian Technical Advisory Group on Immunisation);

(b)    produced a negative RAT (Rapid Antigen Test) on the morning of the listed mediation;

(c)    are free from COVID-19 symptoms and any cold and flu-like symptoms;

(d)    are not required to be isolation under NSW Government self-isolation rules (see https://www.nsw.gov.au/covid-19/stay-safe/testing/self-isolation-rules#toc-self-isolationexternal site); and

(e)    wear any of the following masks while attending the Commission’s premises or any other in-person mediation location:

i.    single use, disposable surgical grade mask; or

ii.     a triple layered cloth mask; or

iii.     a mask with superior effectiveness such as N95s or KN95s see https://www.health.gov.au/news/ahppc-statement-on-the-role-of-face-masks-to-protect-individuals-and-the-community-from-covid-19

63.     Anyone who attends an in-person hearing (including legal practitioners) must comply with the Commission’s hygiene protocols and those protocols include not eating or drinking (other than drinking from each person’s own bottled water) in the venue.

Legal Representatives’ Duties and Insurer’s Duties (In-Person Mediations)

64.     If an Insurer is not legally represented then the duties that apply to Legal Representatives, apply directly to the most senior person attending the mediation on behalf of the Insurer.

65.     Legal representatives must:

(a)    advise their clients, and every person that proposes to attend an in-person mediation in support of their client’s matter (this includes counsel, witnesses, translators, any support persons etc) about the requirements in paragraphs 62 and 63;

(b)    sight reliable evidence of double vaccination from each of the persons described in sub-paragraph (a) above, and advise the Commission (i.e., the relevant Dispute Officer) in writing that they have done so, not less than 5 business days before the in-person mediation date; and

(c)    before the commencement of the in-person mediation, ask each of the persons described in sub-paragraph (a) above, if they produced a negative RAT on the morning of the listed mediation date, and

(d)    if any of the relevant persons advise they did not take a RAT, or that they produced a positive RAT, the legal representative must tell any such person that they cannot participate in the in-person event, and they must leave the venue and Commission premises (if relevant) and the legal representative must advise the presiding mediator, so that any required adjustments can be made to the mediation process; and

(e)    advise the presiding mediator at the commencement of the proceeding that all persons described in sub-paragraph (a) above are double vaccinated (to that extent that is accurate) and produced a negative RAT that day (to that extent that is accurate).

Mediation Process

66.     The mediation will commence with an introduction and explanation of the process of mediation in the Commission. This introduction will outline the role of the mediator and participants, the mediation process and any rules of behaviour, as well as give the parties an opportunity to ask questions

67.     Parties will be given the opportunity to present a statement of the issues in relation to the claim from their own perspective. Once the issues in dispute are identified and understood, parties will be encouraged to participate in joint exploratory discussions facilitated by the mediator.

68.     Parties can also hold private meetings, with and without the mediator. Parties may move between private and joint sessions as appropriate as they explore options for settlement.

69.     Whether or not the claim is resolved, the mediator will conduct a final joint session where the parties come together, and the mediator will note the agreement or facilitate final negotiations leading to either:

(a)    settlement of the dispute, or

(b)    the issue of a Certificate of Mediation Outcome that records the final offers of the parties.

70.     The Mediator must use his or her best endeavours to bring the parties to an agreement on the claim. A Certificate of Mediation Outcome is issued only where the parties fail to reach agreement. In that instance, the certificate will certify the final offers made by the parties in mediation (s 318B of the Act). The parties may then proceed to Court.

71.     Despite the requirement that final offers appear in the Certificate of Outcome, any offer of settlement made by a party during mediation must not be specified in any pleading, affidavit or other document filed on or in connection with court proceedings on the claim (s 318E of the Act). Further, those offers cannot be disclosed or considered by the Court before the Court's determination of the amount of damages in the proceedings.