Edition No.61

Welcome

In this edition you will find out how the Commission is addressing the considerable increase in filings in the Workers Compensation Division.

There is an item on medical assessments and how we will provide greater clarity to claimants and workers about the assessment process.

Practitioners are reminded of their requirements to notify us of changes in legal representation under Procedural Direction PIC1 and rule 60. They are also advised of updates to sub-delegations in the Motor Accidents Division.

Finally, I would like to acknowledge the passing of Michael Concannon of Carroll & O’Dea, a well-known and greatly respected workers compensation practitioner.

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

Regards, 

Judge Gerard Phillips
President

Increased filings in the Workers Compensation Division

We continue to experience a substantial increase in filings in the Workers Compensation Division.

In the 2022-23 financial year, the Commission received 6,289 workers compensation applications to resolve a dispute, compared to 5,300 in the previous year – an increase of approximately 19%. Filings continue to trend upwards and will likely see a similar increase this financial year.

As a result of the increase in first instance filings, there has been a concomitant increase in the filing of appeals.

During 2023 we also had the misfortune to suffer the loss of two members and the retirement of another.

In consultation with scheme participants, the view is that this level of filings could represent the ‘new normal’.

In response to these circumstances and mindful of the Commission’s statutory mandate to deal with matters quickly, the following steps have been and will be taken to contend with these changed circumstances:

1. We have recruited six new sessional members who will commence sitting in March 2024.
2. We are hoping to be able to recruit additional members later in the year.
3. We are introducing our new IT Platform, ‘Pathway’ in workers compensation in mid-2024. This more modern IT system should make work in the division more efficient and streamlined.
4. Later in 2024, across both divisions, we will introduce the new rule limiting filings to 500 pages. This is expected to be a significant reform which will lessen the burden on all parties and decision makers, enabling them to concentrate on the real issues in dispute in accordance with the guiding principle (s 42 of the Personal Injury Commission Act 2020). Parties will still be able to apply to lodge additional material, but they will need to argue how it relates to the real matters in dispute. This reform will enhance efficiency and is also an important aspect of our approach to cyber security – that is, holding only the material we need to fairly and justly deal with the application.
5. Starting immediately, there will be an enhanced focus on ensuring that every application or reply filed is uniformly compliant with the requirement to index and paginate the attached bundles of documents.

We hope the combination of these various actions will assist in contending with the increase in filings and mean that cases can be dealt with quickly. We seek the profession’s assistance to ensure that matters are prepared, paginated and indexed to enable swift allocation of a conference and/or hearing.

Clarity on medical assessments

Each year, the Commission conducts thousands of medical assessments, however, feedback demonstrates that in most of those examinations, the claimant is unaware why they are seeing the doctor and what to expect.

To help provide more clarity to claimants and workers, we have developed a fact sheet which explains why the assessment is taking place, what they need to bring and why it is important.

Importantly, it clarifies that the medical assessor’s role is as an independent decision-maker, rather than a treating doctor, and that the purpose of medical assessment is to determine the dispute.

It also addresses advice we have received from our medical assessors that many injured people talk about the pain they are in, often in great detail. The fact sheet clarifies that as pain is not compensable, pain cannot be assessed.

You can view the fact sheet on our website.

We are now asking all claimants’ lawyers to either explain the fact sheet to their client or to refer it to them and ask them to closely read it.

This is the first of a range of fact sheets we will be publishing on Commission processes throughout the year.

Procedural Direction PIC1

Practitioners are reminded of the requirements under Procedural Direction PIC1 – Conduct of parties during proceedings to notify the President of any changes in legal representation of the parties to a dispute. While this is required to comply with rule 60 of the Personal Injury Commission Rules 2021, we are finding that compliance is inconsistent.

Notification of a change that takes place after the initial application and reply must be by made by lodging one of the following forms with the Commission:

• Notice of Legal Representation
• Notice of Change of Solicitor
• Notice of Ceasing to Act.

The forms are available on the Commission’s website and can be emailed to the Commission at [email protected]

Following the implementation of Pathway for workers compensation matters later this year, we will work towards embedding these forms within the portal.

New sub-delegations in the Motor Accidents Division

A new instrument of sub-delegation under rule 67(4) is now in effect in the Motor Accidents Division. You can view the Commission’s sub-delegations here.

Vale Michael Concannon

It was with much sadness that news of the passing of Michael Concannon was announced by his firm Carroll & O’Dea on Thursday 8 February 2024. Mike had spent over 40 years at the firm and started there in the days of S. J. Carroll and Cecil O’Dea.

Practitioners will be aware of Mike’s high standing in the profession, particularly in compensation law.

Mike cut his teeth in practice during the heyday of the AWU in the NSW regions in the 1960s. He ran cases for Snowy Mountains Scheme workers, assisting to make that project a safer place to work. Above all he was the doyen of representing the shearers of this state in their compensation claims. Long time AWU Secretary and former shearer Ernie Ecob described him “as the finest compensation lawyer in NSW.” Few lawyers knew the workers compensation laws better than Mike.

In his time at Carroll & O’Dea he represented literally thousands of injured citizens with great skill and compassion. A long-time member of the Law Society Personal Injury Committee, he tirelessly advocated for the rights of injured people. A fellow of great integrity and giant of the NSW profession.

The Commission extends its condolences to Mike’s family and friends.

Requiescat in Pace.

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