What lawyers should expect from the NSW Personal Injury Commission
From March 2021, the Personal Injury Commission will launch as a “one-stop shop” in dispute resolution for road and workplace injuries in NSW. Before it does, practitioners in this space should be prepared for what it means to their normal day-to-day practice.
Earlier this year, legislation was passed in the NSW Parliament to establish a Personal Injury Commission (PIC) that would merge the dispute resolution systems of a workers compensation and CTP insurance schemes into a single, independent tribunal as soon as Monday, 1 March 2021. It means a suite of changes should be expected for lawyers in this space in what should hopefully be a seamless, successful transition.
Minister for Customer Service Victor Dominello said the tribunal would assist thousands of customers, put the claimant “at the centre of the dispute resolution process” and will “simplify the process justly, quickly and as cost efficiently as possible”. It would ensure a new way of dealing with the approximately 17,000 applications each year.
Speaking to a webinar hosted by the NSW Law Society, former registrar of the workers compensation commission (WCC) and now division head of WCC for the PIC, Rodney Parsons said there is a lot of anticipation on the commission being successful and that he is sure it will deliver “a very promising opportunity for the jurisdiction”.
“There is quite a lot of personal injury dispute resolution jurisdictions within NSW which could easily be attracted to the PIC, so there is a lot of pressure on success within that first year and there is a lot of work to be done to harmonise the jurisdictions,” he added.
What to expect from day one of the transition?
Effective from March 2021, the bill act will transfer the functions of the WCC, the State Insurance Regulatory Authority’s (SIRA), Dispute Resolution Service (DRS), the Motor Accidents Claims Assessment and Resolution Service (CARS) and a Motor Accidents Medical Assessment Service (MAS) to fall under the one umbrella at the PIC.
His honour Judge Gerard Phillips, NSW District Court judge and president of PIC, said the challenge before the commission is in implementing the will of the Parliament. That means “being ready for” anything they throw at it: “What comes is a matter for them – but we aim to build an institution that will be capable of complying with the parliament.”
Mr Parsons said the first day of the PIC should look very much like the last day in WCC as much of the new rules have been largely drawn from the WCC. Resource-wise, he said that the transition should be smooth and he doesn’t anticipate significant changes.
However, he did stress there would be a challenge in the structural shifts. As opposed to operating with all members, mediators, medical assessors and staff under registrars of each division, the PIC structure will see staff come under the direction of a principal registrar and the remaining members come under the direction of division heads. This he understands, “but it does demonstrate a challenge” moving forward.
No matter what that structural change looks like, Mr Parsons said that the PIC will take precautions to ensure that it is “aligned, consistent and predictable, while at the same time being adaptable, proactive and progressive” in understanding the business along with being attuned to any opportunities for improvement that arises in the beginning.
For the CTP side of things, former principal claims assessor and now division head for the motor accidents division at PIC, Marie Johns said they are changing the most from two sets of guidelines and into the more general rules. While there will be that change, Ms Johns said it is a great opportunity to “enhance what we’re already doing”.
“For us, it’s definitely a matter of continuing to improve and get feedback and enhance on that progress. On the motor accident side of things, it’s definitely a learning curve – but for us it’s going to be important to get that feedback,” Ms Johns told the webcast.
What should practitioners know about the change?
There are several things to remember as the transition takes place, starting with audiovisual, long-term changes brought on by the coronavirus pandemic. Judge Phillips said adapting to change will be a consistent practice of the tribunal and that as the new PIC comes into effect, he is keen to try various things to “make the commission better”.
It means enthusiasm to retain digital delivery: “There were a whole lot of gains in there that tribunals made this year. I’m not going to give them back and I see for the regional practitioners the capacity to have a hearing that could be perfectly done on a platform like we are all on now. It means the country list will move as swiftly as the city list.”
With the way the rules of the PIC have been drafted, Judge Phillips is optimistic change will happen with “plenty of flexibility” and an innovative outlook on the PIC’s future.
Mr Parsons mirrored this, adding that working remotely and online has been a process in the making for WCC over three years. In that time, it transformed into an electronic, case-management system which was a challenge implemented with little fanfare; and is in no way something the PIC will stop adapting on as it moves into post-COVID.
“I do see change as it is an inevitable part of moving forward,” Mr Parsons said, adding: “For practitioners, it’s important to accept we will be conducting hearings by the audio-visual links and it will remain a feature post-pandemic. It really is a good fit for all types of hearings that we have, and it means best practice, efficiency and costs.”
As for accessing published decisions, there are going to be some slight changes. Most of them will no longer be published on legal sites like AustLII or JADE and could instead be accessible via the PIC website. Judge Phillips predicted searching for the materials will be intuitive and will assist with the commission’s transparency and education.
Mr Parsons mirrored this, adding that the PIC has put in a lot of work to make it easier for practitioners to access the decisions. At the commission, it has incorporated many of the case law into the day-to-day members’ practice manual to assist in this space.
For motor accidents, Ms Johns said it is a much more significant change as its practice was to not publish many of its decisions. However, she said she is “very excited” about what that means for practitioners and said it will be a “great learning tool for everyone”.
Any changes that are implemented – or any changes that could be implemented – may be run by the commission. Judge Phillips said he is keen to have the profession inform them of what has worked and what hasn’t worked during the first year.
“The rule committee will be actively looking for feedback. I don’t think anyone is going to find any difficulties with it initially, but we would be very pleased to hear from you on the things that could be improved,” Judge Phillips said.
There is one last bit of advice that Judge Phillips has stressed for the transition: “don’t go berserk” filing last bits of documents on either side of the deadline. There is time.
What to expect from recruitment and diversity?
Judge Phillips said there is a recruitment process underway and he has been delighted with the quality of the candidates. One of the things that he is dedicated to transitioning in this space is preventing assessors from also being practitioners – that is, appearing on a case one day for a client and deciding on another, similar one the next.
“I’m bringing that to an end. This needs to be seen as a proper tribunal, one which will be independent, and there is no tribunal that would allow that,” he said.
“Independence is a multifaceted beast and part of that is the independence of the decision-makers and one of the last aspects of that would be putting aside practice in the commission. Everyone I have spoken to has cheerfully signed up to the new terms and you can be rest assured we have a terrific bunch of members who will be ready.”
During the webcast, a commenter pointed out that a PIC newsletter gave details of the reference group and mediators’ group, which consisted of 50 per cent women, but did not employ any in the medical assessors’ group. To that, Judge Phillips said he wasn’t happy with the doctors’ decision and will be “taking it up with them”.
“I don’t like it [and] I’m not happy with it at all. That is a product of the doctors and I will be asking them to address that at the earliest possible time,” Judge Phillips said.