Edition No.65

Welcome

In this edition, find out what you need to know ahead of the launch of Pathway for workers compensation. This tremendous achievement is just 12 more working days away and will close out one of our key priorities since the Commission was established: bringing both motor accidents and workers compensation users together on a single platform. All motor accidents and workers compensation users need to be aware of upcoming platform outages to enable the launch.

The Commission has published changes to Procedural Directions PIC 3 and PIC 12 which will support the new 500-page limit rule, to commence in late 2024 or early 2025.

Motor accidents users are reminded about the requirements of Procedural Direction PIC 6 to ensure sufficient evidence is submitted for permanent impairment disputes under the Motor Accident Injuries Act 2017.

Finally, I draw your attention to an important decision of the NSW Court of Appeal earlier this year that clearly defines the meaning of a medical dispute under the Motor Accident Injuries Act 2017.

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

Regards, 

Judge Gerard Phillips
President

12 working days until Pathway go-live

• MyFiles and the Online Portal for workers compensation users will cease operation from 5pm on Friday 7 June
• Pathway Portal, myPathway and the Pathway Portal for motor accidents users will be unavailable from 5pm on Friday 7 June

• MyPathway (for decision makers): 10am, Tuesday 11 June
• Pathway Portal (for tribunal users): 9am, Wednesday 12 June

500-page limit

In the previous edition of Personal Injury Commission News, it was announced that the new 500-page limit rule had been published, and feedback to date has been positive. We can now share the procedural direction amendments that will support the new rule.

The revised PD PIC 3 and new PD PIC 12 are now available on the Commission’s website to provide our stakeholders with an overview of the changes before they commence.

PD PIC 3 has been revised to include a reference to the new rule and will commence later this year. The new PD PIC 12 prescribes the 500-page limit and the lodgment of additional documents and will not commence until the new rule commences, anticipated to be in late 2024 or early 2025. This will provide tribunal users with time to familiarise themselves with the changes and for required updates to be made to Pathway.

Procedural Direction PIC 6 compliance

Practitioners are reminded of the requirements of Procedural Direction PIC 6 (PD PIC 6) to ensure sufficient evidence is provided in permanent impairment disputes under the Motor Accident Injuries Act 2017 (the 2017 Act).

For an application relating to a dispute about permanent impairment, section 7.20(3) of the 2017 Act and PD PIC 6 cl 15 states, “the President can refuse to accept the referral by a party to a claim of a dispute about the degree of permanent impairment if the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party.”

Under cl 17 of PD PIC 6, a party must lodge medical evidence in support of the degree of permanent impairment qualified by a treating health practitioner, or a practitioner authorised by the Motor Accident Guidelines to give evidence in the proceedings (this includes a general or specialist registration with the Australian Health Practitioner Regulation Agency). Otherwise, the medical evidence will be inadmissible under section 7.52 of the 2017 Act.

If the evidence in support of the application for assessment of permanent impairment does not include a report from a treating health practitioner or authorised health practitioner that supports the degree of permanent impairment asserted by the party, the application is to include submissions addressing how the admissible evidence supports their assertion about the degree of permanent impairment.

By way of example only, the Commission has received applications for assessment of permanent impairment resulting from both physical injury and psychological injury, in which admissible medical evidence has only been provided in respect to the physical injury, and no evidence provided in respect to the psychological injury.

In order for the assessments of permanent impairment to be dealt with in a timely and efficient manner, in line with the objects of the Personal Injury Commission Act 2020, parties must provide either a report from a treating health practitioner or authorised health practitioner that supports the degree of permanent impairment asserted or alternatively, other evidence together with submissions addressing how the admissible evidence supports the degree of permanent impairment asserted in the physical and psychological disputes referred for assessment. Note: section 1.7(2) of the 2017 Act provides that if an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident, the disputes must be assessed separately.

From 1 July 2024, for applications involving both a physical and psychological dispute, if at least one dispute has sufficient evidence in support of the degree of permanent impairment as asserted by the party, Registry will accept the application and notify the parties that the compliant dispute will be referred for assessment by a Medical Assessor. The non-compliant dispute will not be referred for assessment and parties will be advised to submit a fresh application when they have sufficient evidence in support of the degree of permanent impairment, as asserted by the party.

The meaning of a medical dispute

A recent Court of Appeal decision in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71, clearly defines the meaning of a ‘medical dispute’ under the Motor Accident Injuries Act 2017.

The matter relates to a medical assessment about a minor injury (now threshold injury) dispute. The claimant had sought to argue that surgery to his neck resulted in the injury not being a minor injury. This issue had not been in dispute between the parties and was not considered by the medical assessor.

The Court of Appeal found that “... a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of ‘medical dispute’ in s 7.17, that dispute must relate to the subject matter of a medical assessment matter”. (at [73]) 

The court went on to say (at [94]) that, “The key matter arising out of the analysis set out above ... is that the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act, is the actual medical dispute between the claimant and the insurer about the relevant medical assessment matter.”

This means that all first instance medical assessments and any subsequent review panels may only consider the matters presented to them by the parties as being in dispute. There is no warrant for any inquiry as to whether the claimant’s injuries are in fact different to those disputed.

Similar decisions have been handed down by the Court of Appeal in workers compensation matters of Skates v Hills Industries Ltd [2021] NSWCA 142 and Scone Race Club Ltd v Cottom [2024] NSWCA 34.

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