Intro: You’re listening to a Bourke Legal Podcast.
Dan: In New South Wales in 2020, there was important legislation enacted relating to people injured in motor vehicle accidents or work-related accidents. And a key feature of that legislation was the establishment of the Personal Injury Commission. To discuss what it is and how it actually works, today I’m with Jessica Prasser from Bourke Legal. So, Jessica, what is the Personal Injury Commission and what type of disputes does it actually resolve?
Jessica: So the Personal Injury Commission is an independent tribunal that resolves personal injury disputes in New South Wales. So the way it works is it’s actually divided up into two different divisions. So one of those divisions deals with motor vehicle accident claims, and then the other division deals with workers compensation claim disputes. So the focus of the Commission is that they’re trying to offer a really transparent and independent dispute resolution service. So the Commission, the way it works is it’s made up of numerous figureheads. So you’ve got people such as the President, deputy presidents, members, mediators and medical assessors.
And they’re the people who help determine the way that the dispute is to be resolved in the Commission. Another great thing that the Commission has is they have an online platform so that online platform allows all parties involved in a dispute to easily access each other’s documents and any information provided by the Commission in relation to another. So I found that really particularly helpful because that means I can log on wherever I am, whichever office I’m in, either if I’m working from home or anything like that, and I can still access all of the relevant documentation I need for a matter.
Dan: Right. What about from a worker’s perspective, do they need to be legally represented or can they be legally represented in the Commission and who actually pays for those legal fees? Do they have to outfit those?
Jessica: Yeah. Great question. Workers can definitely be legally represented in the Commission, and it’s actually recommended that they are because these workers compensation claims can get quite complex. So it’s really important that they have a lawyer there to assist them through the process. Now, the cost of that legal representation is actually covered under a grant and funding that the lawyer applies for through the Independent Review Office, and that granted funding can also cover the fees of a barrister if one is required. The same goes for the workers’ compensation insurer who represents the employer.
They’re also entitled to their own legal representation as well. So our team at Bourke Legal, we represent independent workers in the Commission in relation to all workers compensation disputes. So that can be it can include a matter that involves weekly compensation, medical expenses, or whole person impairment.
Dan: I was going to say. Jessica, that having a legal representative with you would just minimise that huge anxiety that workers may actually have about appearing unrepresented.
Jessica: Oh, definitely. I think the workers’ compensation scheme is scary enough for people as it is, we’re dealing with people who are going through something really difficult. They’ve got an injury, which often comes with chronic pain or psychological injuries. And the last thing that they need is the added legal stress of trying to work out this process on their own. So I think it’s really great that the Independent Review Office was created in 2012 and actually allows us to get funding to help injured workers to go through the Commission, because, like I said, it can be quite complex.
So it’s really important that they have that support network.
Dan: So what’s the actual process once a worker’s compensation dispute is referred to the person in the Commission?
Jessica: Yeah, sure. So it does depend on what type of dispute it is. But a claim that involves weekly compensation or medical expenses usually starts with the matter. The first thing listed for a teleconference. Now that teleconference involves a tribunal member that’s appointed by the Commission, the injured worker representative from the insurer and their representative lawyers. So sometimes a representative from the employer is also present, but that doesn’t happen in all cases. So what the purpose of the teleconference is to try and allow the party’s opportunity to informally resolve the dispute.
And it also is the first opportunity for everyone to discuss the issues in dispute. So if the matter doesn’t resolve in teleconference, what will usually happen is it sets down for reconciliation and arbitration, and that usually takes place three to four weeks after the teleconference. Now, the conciliation phase is another opportunity for the parties to try and resolve the dispute. But if that can’t happen, then the matter moves into a more formal process, which is the arbitration, and that’s where each party presents their case to the tribunal member, which is usually done through a barrister.
And then the member will go up and decide the matter and then issue a decision. So due to the COVID-19 pandemic, what the Commission has actually been doing is they’ve transitioned all of the in-person hearings to video links, which has been really helpful for us as lawyers, because it means that we can still progress our clients’ claims during all of this that’s happening in the world. So it’s been really great for us, but saying that, though we are really looking forward to the day when an in-person hearing can take place again.
Now, moving on to whole person impairment disputes, they are a little different because they will usually involve an assessment by a medical assessor, which is appointed by the Commission. So that means the worker has to go off to a third medical doctor, get the assessment, and then that doctor has the final and binding say as to what their level of WPI is. So as you can see, the process can vary, but that’s the usual way it works.
Dan: What is actually the whole person impairment measurement? What is that and how it’s actually measured?
Jessica: So there are numerous ways that whole person impairment is measured. It’s done through guidelines that they come up with and an AMA guy, which is done by the American Medical Association. And it really depends on what type of injury the doctors are required to assess based on the guidelines provided by those associations, and they work out a calculation. They come up with a level of impairment for that person’s injury, and then that will correspond to a lump-sum payout depending on the level of WPI.
Dan: Right. The other thing that comes to mind is what’s the differentiation, I suppose, between those matters that are actually successfully mediated and those that actually end up in arbitration. Is there a huge demarcation or difference between those two figures?
Jessica: It really depends once we get on the matter, usually a matter. Of course, if you informally resolve it at a settlement conference, it’s always going to be a lesser amount than the full amount, because, of course, the insurer is not going to want to pay what a full claim is worth voluntarily. If they’re forced to do that, it usually has to be done through a member making a formal decision. But the purpose of a settlement conference, we will always recommend our clients negotiate because obviously there’s significant risks when you take the matter to hearing.
The tribunal member may not agree with our evidence. They may find that they agree with the insurer’s evidence rather than ours, which means the worker comes out with nothing. So it’s a really important process in the Commission, and the tribunal members are the ones who really do emphasise the importance of both parties coming to those conciliations and teleconferences with an open mind and willing to negotiate because it does take the risk out. Unfortunately, there are some matters that just can’t be settled. For example, a matter that is for surgery costs, for example, a client needs a knee replacement.
The insurer can’t pay for half a knee replacement, right. So those matters, medical disputes are really difficult to try and settle because you either need to have the surgery paid for or they don’t pay for it. So there are some matters that you find you end up going to hearing, not because the parties aren’t really willing, but it’s just more what’s being claimed, whereas claims for weekly compensation, for example, because it’s all monetary value, those can be negotiated a lot easier.
Dan: Got you. Now, what about if the Personal Injury Commission hands down a decision that perhaps both the lawyers and the worker aren’t happy with? Can it be appealed?
Jessica: Yes, they can be. But the process of appeals vary once again, depending on the decision. If the matter goes to arbitration and a member gets a decision, the parties can appeal to the President of the Commission within 28 days of that decision being made. But the grounds of those appeals are limited. So it’s either going to be an error of fact, law or discretion. But if the President then issues a decision, and the party still aren’t happy, then the parties have to actually step outside the Commission, and then they have to file the next appeal in the New South Wales Court of Appeal, which obviously comes with a whole lot more cost, et cetera.
So that really needs to be taken into account when deciding whether an appeal is worth proceeding with. With the medical assessor’s decision, they can be appealed for four different reasons. So if a person’s condition has deteriorated since the medical assessment, which means that the level of WPI is likely to have increased, that might be a reason to appeal. Also, if there’s any information that comes about that wasn’t available at the time of the assessment, that’s another ground that may allow you to appeal. And the assessments can also be appealed if they’re based on incorrect criteria or if there was an obvious error.
Those types of appeals are actually referred to a medical appeal panel appointed by the Commission, and that appeal panel is made up of both doctors and members, so arbitrators. But the Commission can also send it back to the same medical assessor for reconsideration. If they think that if that doctor can probably just look back at their own decision and maybe fix it themselves.
Dan: Right. It does really emphasise the importance of getting legal advice with all this sort of stuff, doesn’t it? Because I’m just assuming that if a worker is representing themselves and they find that they ultimately end up with, for a lack of a better word, an adverse decision by the person in your Commission and then have to appeal it, that would be problematic to do on your own 100%.
Jessica: So it is vital that you get legal advice on these decisions because there are strict time frames for appeals. And also someone reading one of these decisions may not be able to understand quite what the decision is saying or if there is an error. Sometimes, us lawyers even have to go through these decisions multiple times to ensure that the person making the decision has followed the law. So if you’re not familiar with that law, it can be really difficult and you may actually lose out on your right to appeal. So yeah, once again, we really emphasise the importance of getting that legal representation, especially because the worker doesn’t have to pay for it in New South Wales.
Dan: Yeah, that’s so true. Jessica. If somebody is listening to this podcast has got further questions or is in the earliest stages of recovery after a work accident, they can reach out to you at Bourke Legal.
Jessica: Oh, definitely. The great thing is we have people, I have clients who are coming to see me at different stages of their workers’ compensation claim. The workers’ compensation claim can go for months or even years. So no matter what stage or if you feel that you need some support, you’re not quite sure what the next step is, or you just want to make sure that you’re covering all of your bases, please feel free to contact us because we’ll be able to give you some advice.
Dan: Tremendous. Jessica, thanks for joining me.
Jessica: Thank you so much.