Edition No.102

In this edition, I outline the ongoing work to operationalise changes to workers compensation legislation, including the new arrangements being put in place to enable the Commission to determine commutations which will commence on 1 October 2026. Updated rules and a new procedural direction will provide guidance to tribunal users.

Practitioners who intend to apply for a non-publication or disclosure order in line with s 58A of the Personal Injury Commission Act 2020 must ensure they provide cogent reasons for the order to be made.

Tickets are now on sale for the 100 Years of Workers Compensation Dinner, to be held at Parliament House on 4 November. Spots are limited, so tribunal users who would like to attend are urged to purchase tickets as soon as possible. Please note that the event is wholly funded by ticket sales.

The Commission continues to experience high filings across both the Workers Compensation and Motor Accidents Divisions, and while finalisations are strong, they cannot keep pace with the high volume of work coming in.

Finally, I would like to remind tribunal users who are appearing before the Commission remotely via Microsoft Teams that they must prepare for the event by testing their video and audio ahead of time. They should also join the event at least five to 10 minutes before the start time. The Commission has published a new fact sheet that explains these requirements.

Regards, 
Judge Phillips
President

The Commission continues to work through the legislative amendments relating to workers compensation, with a current focus on preparing for the commencement of commutations on 1 October 2026.

The Commission’s Rule Committee this week resolved to update the Personal Injury Commission Rules 2021 to reflect our new power to approve commutation agreements. These will be supported by a new procedural direction, PD WC8 – Commutations, and an updated Form 5A – Application to Approve a Commutation Agreement.

Parties seeking to have their matter commuted will need to file an application via the Pathway Portal with the contact details of all parties to the agreement and their legal representatives (if appointed), and supporting evidence which addresses the requirements under sections 87EA(1), or the new section 87EA(2) and (2A) of the 1987 Act and the new Part 9A of the Regulation, including:

• the executed commutation agreement (which is in a form approved by the State Insurance Regulatory Authority)
• a statement from the worker:

1. confirming they have received legal and/or financial advice as required, and understand the implications of the agreement, and
2. addressing the pre-conditions under section 87EA(1), or
3. addressing the requirements under section 87EA(2) and (2A) that they meet a class of case prescribed by Part 9A of the Regulations, and that the amount is not inadequate or excessive with regard to their injury, age, general health, occupation at the time of injury, ability to compete in the open labour market, benefits from another source they may be entitled to, or any other relevant matter

• evidence as to the degree of permanent impairment assessed and agreed to by the worker and insurer
• any documentation or evidence exchanged between the parties and relied upon in the process of entering the commutation agreement and reaching the lump sum amount
• written confirmation from the worker’s legal representative that they recommend the lump sum amount in the commutation agreement.

All relevant supporting documents must be attached in a single document bundle as outlined in the new PD WC8 (19).

Compliant applications will be determined quickly by a member on the papers, where possible. If the member is not satisfied with the material before them, they will issue a direction for a preliminary conference and after that, issue a determination either approving or not approving the commutation agreement. 

A commutation application can be withdrawn at any time by the worker prior to approval; however, they should consider that the approval can occur quickly. The worker must give written notice to both the insurer and the Commission via the Pathway Portal immediately following lodgment if they wish to withdraw.

PD WC8 – Commutations commences on 1 October and is now available on the Commission’s website. It is anticipated the new rules in respect of commutations will be published at the time, too. 

The updated Form 5A will not be available in the Pathway Portal until late October. In the interim, tribunal users should use the existing Form 5A – Application to Register a Commutation Agreement and provide the required information in their supporting material. Help text within the Pathway Portal will help guide users on this. 

Medical and related treatment
Also commencing on 1 October 2026 is that the test for compensation for medical and related treatment will change from ‘reasonably necessary’ to ‘reasonable and necessary’.

Other changes
Amendments to the Personal Injury Commission Rules 2021 will also support the following workers compensation changes that commenced on 1 July, for anticipated publication on 1 October 2026:

• that Pre-Injury Average Weekly Earnings (PIAWE) are to be dealt with by way of an expedited assessment;
• that the representatives of insurers must certify reasonable prospects of success and costs; and
• to support the new power for the Commission to decide on a compromised lump sum for a death benefit when liability is in dispute.

Additionally, PD WC1 – Compensation payable on death will be updated to provide guidance on the Commission’s power relating to lump sum death benefits.

Webinar for legal practitioners
To assist practitioners to understand these and other workers compensation reform changes, a webinar will be held in November. Invitations will be sent closer to the event.

View the legislative reform webpage