Speech delivered by the President to the Independent Review Office

New South Wales Personal Injury Compensation Seminar – A System in Transformation

Paper delivered by the President to the Independent Review Office

Thursday 17 June 2021

The Personal Injury Commission almost four months in: How are we going and what is ahead?

It is great to be here today to talk about the new Personal Injury Commission and the changes we are implementing. I am very appreciative of Simon Cohen’s kind invitation to speak today and give me the opportunity to address such a large group of practitioners who appear in the Commission every day.

It’s almost 4 months since we opened with the Ceremonial Sitting in the District Court. I think it’s important to understand what happened on 1 March 2021. What occurred was a merger of two different organisations with different histories and different approaches to dealing with disputes. One was an independent statutory tribunal with Rules and Practice Directions, the other was a dispute resolution body which sat within a government agency department and which had been set up pursuant to completely different policy settings 20 years ago. It is also an exercise in change management, both internally and externally.

The merger produced a new organisation of:

• 57 members
• 155 staff, with recruitment ongoing
• 192 medical assessors
• 2 separate IT systems
• The creation of new positions such as the new Principal Registrar, Division Heads and various categories of member
• A new leadership team.

We’ve got the right people to do the work – the right mix and right number.

While it is going to take some time to bed the new organisation down, we are on track to achieve most of this during 2021. What we are doing however is laying the foundations of a Commission that will serve the citizens of New South Wales for a long time to come. And this will take time. When you create something new there is a process that you need to work through, as strategically and methodically as possible to move all of the pieces into place.

In normal circumstances, this would be a large undertaking. As any of the lawyers here who have been involved in mergers on behalf of clients or indeed in law firms themselves know, there are really two parts to that activity. Firstly there is the decision in principle being taken to effect the merger, in this case the passage of the legislation and the preparation for the opening, and then there is the hard part, which is making it work after the merger. I’ll simply pause to say that all of this has taken place and is continuing to take place in the middle of a pandemic, the likes of which we have not seen since 1919. The Commission’s staff have been working remotely since 23 March 2020. We do have small teams working back within the office, but we are still very much on the remote working track at present. I will explain why but it has to do with the property renovation which we are shortly about to commence.

So where are we almost 4 months in, what have we done and what is there left to do?

To date we have:

• Officially launched the Commission with a Ceremonial Sitting on day one, where the positive views of the NSW government and the legal profession regarding the Commission’s establishment were conveyed
• Established a single ‘front door’ for the Commission that enables injured people and stakeholders to interact with the Commission via a single website, email address and inbound phone line
• Established a staff structure for the Commission that will best position it to deliver on its objectives – this has included the creation of a directorate structure
• Recruited experienced members and for the first time in motor accidents, stopped members from practising in the jurisdiction
• Received lodgements of 4442 applications (as at 16 June 2021) and set each on the appropriate dispute resolution pathway
• Finalised 4299 applications (as at 16 June 2021), achieving outcomes for the injured people involved
• Published 243 decisions (13 Presidential, 140 Non-Presidential Member, 77 Medical Appeal Panel, 12 Merit Review, 1 Merit Review Panel as at 16 June 2021)
• Maintained and adjusted arrangements for operating the Commission in pandemic conditions as needed
• Convened multiple reference groups for key stakeholder cohorts and established a regular timetable to meet with them to provide updates, gather feedback and answer their questions
• Established a suite of communication channels for the Commission to communicate regularly to its stakeholder cohorts
• Implemented a single technology platform for teleconferences
• Commenced ongoing training with medical assessors, particularly around appeal and review panels and their roles in them
• Published a complete set of Rules and Procedural Directions which thus far are working well.

But as I stand here today, it is not the finished product. This is not unexpected, but we are on track.

In terms of issues that I know are alive in people’s minds, particularly IT and the medical assessments in third party matters, the following is the situation.

Medical assessments

Firstly, with regard to medical assessments in the Motor Accidents Division. As you all know, there was a quantity of delayed assessments which we acquired on 1 March which were COVID related. In-person medical assessments had to be ceased entirely for over three months in 2020 in this area and for good reason. And during this same period, the new number of applications continued to be lodged at usual rates, so in a sense there were 6 months’ worth of disputes to attend to: the appointments that had to be cancelled, as well as the new lodgements made during that lockdown period.

In-person assessments have recommenced, and the Commission’s staff are working very hard to clear the pandemic backlog. Our aim is to allocate a medical assessment to all the matters that were delayed during 2020 by November this year. This will not be possible for all matters, some people who are still overseas or interstate will be a challenge, but the aim is to have all the ones we can allocate, allocated by November. At the same time, we are endeavouring to achieve this by not creating a new backlog in the new Commission’s work. I am exceedingly proud of the staff in the medical services directorate of the new Commission who have rolled up their sleeves to address this unavoidable problem.

During the worst of the lockdown in 2020 which was approximately 3–4 months, there were approximately 1,950 medical examinations in this area which had to be cancelled. During this time however, the new applications did not slow down. Further in relation to this period,  what you have to understand is that it didn’t suddenly revert back into full operation in July; a number of plaintiffs justifiably were concerned about travelling to examinations, a number of the doctors were of an age where they were in a vulnerable category, obviously interstate plaintiffs with the borders going up and down with monotonous regularity have been difficult to accommodate. So what I am saying is it would be wrong to think that it was just a defined period where examinations were cancelled, getting this back up and running full tilt has taken some time. Indeed the complete suite of in-person medical examinations did not recommence until May this year. Now the view I am giving you about when we can have last year’s delayed matters dispensed with is correct as at today’s date, but of course if lockdowns start again the best laid plans get overthrown.

But there are a few other figures which I think you might find interesting. Since 1 March we have finalised over 1000 disputes that were lodged at DRS and currently have about 3,000 of the legacy matters from DRS still active. About 60% of those have appointments booked in the coming months. There is also a category of matters that are going to be delayed for reasons outside our control, for example a plaintiff is caught overseas or surgery has been delayed by COVID and as you would appreciate there is always a quantity of plaintiffs whose condition has not stabilised and who are therefore not ready for assessment.

So in summary, the COVID effect on the medical assessments really commenced in about March 2020 and lasted more than a year. For a period it was a complete cancellation of all examinations and then it slowly recommenced and we are now back, as at May 2021, to in-person examinations. I think if we can get on top of this and eliminate particularly the 2020 delayed matters this year we will be doing very well indeed. I think the real challenge for practitioners will be with regard to those plaintiffs who are outside of New South Wales, particularly those who are overseas or those in Victoria as there are circumstances applying to those matters which are out of our control if State Governments put borders up, and it appears that overseas travel is still going to be seriously curtailed until probably mid next year. In summary I don’t think we have done too badly with this. There was always going to be an effect upon matters as a result of the pandemic and if we can get these matters allocated by November that would be terrific.

IT

As you know the new Commission is conducting the two legacy IT systems from the Workers Compensation Commission and the DRS. Both provide for the digital filing of matters and we do not accept hard copy filings.

I have ensured that the Commission has been very responsive to feedback in relation to the IT systems since the Commission commenced and have invested a large amount of labour in implementing improvements and enhancements that shift the dial on the user experience for everyone who interacts with the Commission’s systems. Significant changes have been made to date and will continue in the coming months.

On the third-party side, there have been some teething problems with the operation of that system. Since 1 March we have undertaken an enormous amount of work to bed down and stabilise this platform. A number of enhancements and fixes, the details of which I will not bore you with, have been undertaken and completed. We are very shortly going to be at the point where any troubles that you experience in using the system will be user problems and not issues with the system itself. I said at a speech at a law firm about a month ago, that our aim is to achieve the usual level of aggravation that exists with any IT platform, particularly any relatively new IT platform.

It is not my intention however to conduct two separate IT platforms indefinitely. We will in the medium-term future be reviewing and examining how we might be able to move to a single IT system for the whole Commission. But I need to have the current system operating so that we can get ourselves into a business as usual operating situation.

We also announced recently that MS Teams will be the new Commission’s single digital hearing platform.

But the thing I can tell you about both the IT and the medical assessments is that we have made significant progress since 1 March and to my mind we have broken the back of both problems.

Key Performance Indicators

I have been asked by one person as to when the Commission will publish key performance indicators. For example, when a person files an application for a medical assessment in a third-party matter, what is the indicative time frame in which they can expect to be notified of such an appointment. Now I have deliberately not considered issuing such timeframes during 2021. We have obviously had the issue of the delayed matters to deal with, we have had a new organisation to bed down, both in terms of staff and members, and we have a new set of Rules and Procedural Directions in operation. By early next year I think I will have sufficient data regarding the Commission’s BAU operations to be in a position to begin providing information to parties about how they can expect disputes to progress. By that time, I will have the data and the lived experience of operations of the new Commission under the new Rules and Procedural Directions so that any expectations that are set have a basis in reality and the bulk of the 1999 motor accident matters will be complete. In terms of these timeframes, I intend consulting with the Presidents of the Bar and the Law Society about what we are doing in this regard.

Premises

We will also shortly be commencing renovations of the Oxford Street premises. We need more courtrooms, including one larger courtroom. As you know, the general design of tribunals calls for rather smaller intimate rooms which are less intimidating for litigants and I am not going to be moving away from that, but there are a few factors that have led me to consider that the new Commission needs at least one decent sized courtroom. Firstly, this COVID issue is going to be around for some time, and we do need to have a hearing room which is much larger than some of the smaller rooms we have. If we have various outbreaks or limitations put upon gatherings because of such outbreaks, it is my intention to have at least one large courtroom which can operate throughout such vicissitudes.

Secondly, it is becoming increasingly obvious to me that there are certain large matters in both workers compensation and motor accidents, particularly some of the larger death claims, that simply need for the benefit of the practitioners a large courtroom style room so that they can be conducted more comfortably for all concerned. I expect the renovation to be completed this year, and a new long-term lease will be entered.

I have also taken the opportunity to create a suite of medical rooms so that injured people can also have their medical assessments conducted at 1 Oxford St. This will be a great benefit and allow for people, particularly those with multiple injuries, to have all assessments conducted on the same day at the same location.

What all of this means is that by the end of this year we will not only have new premises, but we will have bedded down all of the numerous moving parts in the new organisation, cleared the backlogs and have a brand new fit for purpose Commission that I hope you will all enjoy appearing in.

Bear this in mind, it is our aim to dispose of cases quickly and fairly.

Rules

Later this year we will be conducting a review of the Rules to see how they are operating. Next month, there will be a discrete consultation about how surveillance film and reports are used in third party matters. I don’t think it will come as any surprise to people in this room, I don’t like the current situation in third party matters where an insurer can serve many hours of surveillance material the night before a hearing. This inevitably leads to adjournment applications which will be granted because it is simply not fair to proceed in those circumstances. That does not allow the Commission to conduct itself fairly, quickly and justly in accordance with our statutory mandate. So I have made it quite clear to everyone that this situation is going to change, and I am looking for the input from the profession and the insurance industry about what the new situation should be. That will be a discrete piece of consultation regarding that one issue, because it is something that the Rule Committee wants to have your views about and it will be considering that in some detail. But secondly, there will be a broader review of the Rules to examine whether they are operating as intended or whether they can be made even better and that will be conducted probably around October or November this year.

In terms of changes to the Rules or indeed changes to Procedural Directions, I have this approach. If things aren’t working, I don’t want to stick with them. But I do know from my long period of legal practice that there is nothing worse than for there to be multiple changes to Rules and Procedural Directions in the single year. It simply becomes too confusing for the profession if the Rules attain the quality of a periodic publication. So my approach to rule changes is, as I said, I don’t want to persist with something which is not working, but if we are going to change something, unless it needs immediate action, for it to occur on an annual basis with plenty of notice to the profession. So what I envisage is that the Rule Committee has a meeting in around October each year which considers reviews to the Rules and what they are going to be, we give notice to the profession that the Rules are going to change, for example from the commencement of the new law term in the year immediately following the October meeting. What I want to do is give everyone operating in the Commission some certainty about our operations.

Publication of decisions

As you know, one of the new things in the Motor Accidents Division has been the advent of s 58 - the publication of decisions. Obviously on 1 March we acquired a quantity of matters which were already in train before the DRS, they were not matters to whom the publication of decisions applied in every case. We have however been slowly publishing decisions in the motor accidents area, and I think that what you will see over the next year to 18 months is a much more substantial body of decisions to refer to. Decisions will be available in our published bulletin and through a link on the Commission website.

So that’s an overview of where we are at as a Commission at this point in time. We’re off to a solid start and we will continue bedding things in and addressing key focus areas over the coming months.

So what’s next and where are we headed?

In the next few months, we will, among many other things:

• Continue the process of change until we reach the desired operating conditions
• Continue harmonising operational practices and procedures to bed the organisation down and achieve efficiencies
• Complete the transition to a single platform for videoconferencing
• Kick off a review of our IT systems to determine an optimal, single system for the future and meanwhile stabilise the motor accidents system
• Launch internal programs for staff to build the organisation’s social fabric, promote welling and recognise achievement
• Prepare and publish the Commission’s first Annual Review
• Review the Commission’s Rules and Procedural Directions later in the year

This is all part of our ongoing body of work to establish the Commission as a single organisation and fine-tune its operations.

And where will we be heading into 2022? What’s the Vision?

• We will have cleared the portfolio of delayed matters
• The expected lifecycles of various dispute types will be available
• Matters will be progressing quickly through the dispute resolution process in line with our objective to deliver outcomes in a timely manner
• We will have high quality decision making - and to that end we will be publishing more and more of our decisions so there will be greater information available for everybody to refer to
• In terms of motor accidents, there are far too many dispute types. I think that these can be sensibly rationalised so that there is a much more confined suite of documents to be used to file an application in that area
• We will have opened our new premises and, pandemic permitting, resumed full in-person operations at 1 Oxford Street
• I will also be conducting an examination of our country venues to see if we can improve that aspect of the Commission’s operations.

I must say the best thing which I think the Commission and its members have experienced during this time of change has been the feedback and encouragement from the profession. Most practitioners I speak to are very excited by the prospect of this new tribunal, they see its benefits and potential and are working hard to help us make it succeed. With this type of positive attitude, I am really quite optimistic about the new body that we are continuing to build out.

Thank you for your attention here today.