Edition No.86
This edition was issued on 13 August 2025
Welcome
I am pleased to announce that General Member Rachel Homan has been appointed as Senior Member in the Commission’s Workers Compensation Division. Please join me in congratulating Rachel on this well-earned promotion which will commence on 1 November 2025.
Incidentally, this appointment opens up recruitment for a General Member position. Further information about this opportunity can be found below.
In the recent Supreme Court decision in May v Costaras [2025] NSWCA 178, attention is drawn to the decision of the Chief Justice at [3]-[17] about the deployment by one party of submissions which were the product of an AI application. This highlights the requirement of parties to disclose the presence of AI in either arguments or evidence.
The Commission’s rules governing the use of AI are close to being completed by the Parliamentary Counsel. Parties are reminded of their duty of disclosure and the requirement to check that any authority cited actually exists.
For those following the legislative debate on workers compensation, you’ll be aware that the government has introduced a ‘new’ workers compensation bill, called the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025.
The new Bill closely mirrors the original. The Legislative Council’s decision not to set a timeline for the conclusion of its inquiry has prompted the Government to act in the interest of creating certainty. According to the Treasurer, the second Bill will be up for debate in September, if the Public Accountability and Works Committee does not release the first Bill.
Read on for updates and reminders from the Personal Injury Commission.
Regards,
Judge Gerard Phillips
President
Recruitment news: General Member, Workers Compensation Division
The Commission is calling for applications for a full-time General Member within its Workers Compensation Division. This is a valuable opportunity to contribute to fair and effective dispute resolution within a key statutory tribunal in NSW.
To be considered, the applicant must be a qualified legal practitioner of at least five years’ standing or, in the opinion of the Minister, possess special knowledge, skill or expertise.
Appointments may be made for terms up to five years, with eligibility for reappointment. Applications close at 10.00AM (AEST) on Thursday 21 August 2025.
Court of Appeal decision in State of New South Wales v Culhana [2025] NSWCA 157 (17 July 2025) (Culhana)
The Court of Appeal has recently considered the nature of an appeal to a Presidential Member under s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
Culhana has disapproved the previous approach to such appeals as stated in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.
Practitioners involved in Presidential appeals should be mindful of this change in jurisprudence when drafting submissions on appeal.
Supporting injured people through the medical assessment process
The medical assessment process is a key element of the Commission’s dispute resolution model. However, for many injured people, this can be daunting - especially when they are uncertain about what to expect. Without careful management, the experience may lead to additional psychological distress and process trauma.
Legal practitioners play a crucial role in preparing clients for their interactions with the Commission, including medical assessments. Clear communication, empathy and proactive guidance are essential to ensuring injured people feel informed and supported.
To assist in this responsibility, the Commission has published fact sheets and explainer videos covering various aspects of the process. These materials provide practical insights into what clients can expect during a medical assessment and a step-by step video walkthrough of the assessment experience.
Practitioners are encouraged to make use of these resources when preparing your client.
Protecting privacy in published decisions: understanding rule 132
The Personal Injury Commission Act 2020 mandates the publication of decisions to uphold transparency and public confidence. In accordance with rule 131, decisions of the Commission are published on its website and other legal databases no earlier than seven days after they have been issued.
However, rule 132 provides a mechanism for relevant persons to apply for the de-identification and/or redaction of publishable decisions. Such applications may be warranted in circumstances where publication of details may impact the health, safety and wellbeing of a claimant, or to prevent prejudice to the proper administration of justice.
Despite this mechanism being available during proceedings, it is rarely used. More often, the Commission observes that parties wait until a decision is issued before considering an application – if they do so at all. This reactive approach undermines the protective intent of rule 132.
Parties are encouraged to consider rule 132 early in the process to allow for a more timely and thoughtful resolution. In determining an application for a direction, the Commission will weigh the considerations outlined in rule 132(4), which balance the principles of open justice with the need to protect individuals and uphold the integrity of proceedings.
Process changes for making applications for reconsideration in workers compensation matters
The Commission is implementing important updates to the process for lodging applications for reconsideration in workers compensation matters.
Under the revised Procedural Directions PIC7 and WC7, all applications for reconsideration must be submitted using the new Form 19 – Application for Reconsideration, accessible through the Pathway Portal. This will replace the current method of submitting applications by letter.
In addition, responses to reconsideration applications must now be filed using Form 19A – Response to Reconsideration Application, also accessible through the Pathway Portal.
Parties will also be able to view in their Portal any notes included with a reply request, as well as any reasons provided for the rejection of a temporary application or document.
These changes will come into effect from next week. They are designed to make it easier for parties to manage all aspects of their matters on the Commission’s single digital platform.
Check the Commission's Procedural Directions
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