Edition No.62

Welcome

In this edition, you can read about a paper on the conduct of appeals in the Workers Compensation Division, which I recently had the pleasure of presenting to the University of NSW’s Faculty of Law.

Recruitment is underway for two full-time members, one in the Workers Compensation Division and one in the Motor Accidents Division. I strongly encourage suitably qualified candidates to apply.

There is an update on the Commission’s progress on the implementation of our single digital platform Pathway for workers compensation disputes.

Finally, I would like to remind all tribunal users about the amendments to rule 67 which will introduce a 500-page limit on the supporting material which can be submitted for certain dispute applications and replies later this year.

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

Regards, 

Judge Gerard Phillips
President

The conduct of appeals in the Personal Injury Commission

Appeals in the Personal Injury Commission’s Workers Compensation Division were the subject of a paper recently delivered by the President at the University of NSW’s Faculty of Law Personal Injury Intensive.

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 provides for appeals from a non-presidential member’s decision to a Presidential member. An appeal is limited to a determination of whether the decision appealed against was affected by any error of law, fact or discretion and to the correction of any such error. However, there are several common issues that can arise in appeals.

The Conduct of Appeals in the Personal Injury Commission of NSW, authored by President Judge Phillips and Deputy Presidents Michael Snell and Elizabeth Wood, outlines some of these issues, including procedural fairness, the exercise of discretion, factual errors, and the raising of a new argument or fresh evidence on appeal, among others.

The paper, which the President delivered on 6 March, also highlights what’s ahead for the Commission, including Pathway and the 500-page limit on which you can read more about below.

It was well received and generated robust conversation among attendees.

Recruitment underway for two full-time members at the Commission

The Commission is currently recruiting two full-time members – one in each of our divisions.

The first is a new position in the Workers Compensations Division that we have created as part of our response to the large increase in filings over the past 12 months. Together with the six sessional members who began sitting earlier this month, this role will help bolster our capability in this area.

The second position, in the Motor Accidents Division, will replace a current full-time member who is transitioning to our sessional member ranks.

You can find the advertisements for these roles on I work for NSW. Applications must be submitted by Friday 19 April 2024.

While the Commission regularly recruits sessional members, full-time roles come up less frequently. As is evident from the advertisement, a candidate with the capacity to be a dual member – that is, hearing matters across both divisions – would be highly competitive.

Pathway for workers compensation

Work is progressing well on the development of the Commission’s single digital platform, Pathway, for workers compensation users and we anticipate they will transition to the platform mid-year.

The Commission recently held demonstration sessions of the new platform for representatives of each user cohort. The sessions provided users an opportunity to have a first look at the platform and how it works, understand what will change when it is implemented and provide feedback on the functionality.

Feedback from the legal profession centered mainly on who can see and act on what in the portal, how correspondence between law firms and the Commission will occur and the information that will be included, and ways to avoid re-keying data that is already on a matter.

Feedback from decision makers primarily focused on the way availability is provided to the Commission for allocations and the new messaging functionality available.

The feedback and suggestions from all cohorts was very informed and useful and will be considered for future enhancements of the Pathway platform.

In addition to the demonstration sessions, representatives of each cohort recently participated in hands-on testing of the functionality to confirm it is working as it should. Feedback from those involved has been very positive. We are appreciative of their willingness to be involved and grateful for the time they set aside to participate in the testing onsite at the Commission.

The Pathway team is continuing comprehensive testing of the platform and preparing for the migration of data from the current Comcase platform to Pathway in advance of launch.

As with the implementation of Pathway to motor accidents users, workers compensation users will be supported through the transition to Pathway with a comprehensive program of communication, education, training and post-launch assistance with reference materials.

We will provide further updates about the transition over the coming months.

500-page rule

The Commission is now in the final stages of drafting amendments to rule 67 with the Parliamentary Counsel’s Office which will introduce a new 500-page limit on the filing of certain dispute types later this year.

This change will increase efficiency and help the Commission meet one of the guiding principles of the Personal Injury Commission Act 2020, to only consider the real issues in dispute between the parties. It will reduce the filing of irrelevant material such as sensitive medical information about claimants that does not relate to the dispute, or duplicates of reports, while also helping to address cyber security and privacy risks.

It is important to note that the rule will not prevent additional material from being filed, if it is necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. Parties will still be able to make an application to submit additional documents, however they will need to explain how the additional material relates to the real issues in dispute. A decision whether to allow the additional material to be filed will made by an appropriate decision-maker, either during a short on-line hearing or ‘on the papers’.

The rule will not come into effect until after the transition of workers compensation onto Pathway, and we will continue to update you as the work progresses.

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