Personal Injury Commission - Pitfalls for Insurers and Claimants
The Personal Injury Commission (of NSW) came into being on 1 March 2021 and was established under the Personal Injury Commission Act 2020. It should be noted that the Personal Injury Commission Rules of 2021 also apply to the governance of this particular body.
The Personal Injury Commission, or PIC, as it is known by practitioners, essentially consists of two divisions, namely the workers’ compensation division and the motor accidents division. In this paper, focus will be maintained on the PIC’s management and resolution of motor accident claims.
The proceedings in the motor accident division are essentially brought under two separate pieces of legislation, namely the Motor Accidents Compensation Act 1999 and the Motor Accidents Injuries Act 2017.
In addition, there are two sets of regulations made under each Act, namely the Motor Accidents Compensation Regulations of 2020 and the Motor Accident Injury Regulations of 2017.
Practitioners should also be aware of the Motor Accident Guidelines when seeking to lodge any claims with the Personal Injury Commission.
The NSW government’s press release described the creation of the PIC as, “A new one stop shop Personal Injury Commission to simplify the dispute resolution system for injured workers and road users”. There are many instances where the process is now more complex than before. It may seem a trivial point, but it is perhaps symbolic of the increased complexity, that before all decision makers were Assessors – now there are medical Assessors and Members.
In many respects, the Personal Injury Commission, borrowed much from the workers compensation system in terms of its practice and procedures and simply applied those procedures to motor vehicle accident claims. Whilst the assessment of motor accident claims has some commonality with workers’ compensation injury claims, there are many differences, which the new practices and procedures do not necessarily accommodate successfully.
Like all “one stop shop" solutions, or one-size-fits-all approaches, there have been a number of (possibly) unintended consequences for motor accident claims, which have resulted in unreasonable delays, unnecessary administrative difficulties, and the accrual of unnecessary costs for both the insurer and the claimant alike.
To say that the Personal Injury Commission has had teething problems would be an understatement, in the view of many (both insurer and claimant) who deal with the system on a daily basis and in particular the temperamental Personal Injury Commission portal.
Whilst it is to be hoped that many of these issues will be ironed out over time, and indeed with a greater concentration by the Commission on the ongoing significant IT problems associated with the poorly functioning portal, perhaps the end of 2021 will see smoother sailing ahead.
However, there are three ongoing significant problems currently affecting practitioners who are required to deal with the Personal Injury Commission and its portal. These problems are highlighted below.
As indicated above there are significant ongoing IT issues affecting the portal which the Commission is well aware of and is attempting to deal with.
However, even when the portal is up and running, there remain difficulties with the very nature of the way the portal has been set up to operate.
Unlike its predecessor, DRS (SIRA), who would accept lodgement of applications by way of post, DX, email or personal delivery, the PIC has only one channel of communication with its Members and Assessors, and that is via electronic lodgement on the PIC portal.
Not only do all documents need to be lodged through the portal, but any communication with any case manager at the PIC or a Member/Decision Maker must be channelled through the communication function on the PIC portal. Direct communication with a Member is no longer possible.
This cumbersome system does not in any way take into consideration the need for urgent communication which not infrequently arises when parties are attempting to prosecute and/or resolve a claim. The parties are very much dependent upon the speed of the case manager allocated to monitor the claim to stay on top of their emails, and deal with, or pass on any urgent communication in a timely fashion.
The “one stop” lodgement system of documents is also problematic. Given the ongoing difficulties with the portal from an IT perspective, it is not an infrequent experience for the parties to lodge documents on the portal and then to be informed, often some significant time later, that the PIC has not received those documents. This failure of the PIC to receive the documents cannot be corrected by the parties attempting to convey those documents by another means.
This has often resulted in claims and medical assessments running before Members and Assessors, in circumstances where they plainly do not have access to all of the material that the parties have lodged on the portal and the parties had reasonably assumed this would be the case.
The current situation appears to be that it is a matter for the insurer/claimant to prove that they have previously lodged the necessary documents, rather than for the PIC to ensure that the documents listed in the parties’ index of documents were received when first lodged on the portal.
The only way forward to address this issue at the moment, is for the parties to provide a second index of documents to the portal, just prior to an allocated assessment and request a confirmation from the PIC that all of those documents have been received and are accessible to the Assessor or Member.
It is not unusual for the parties to have to upload the same set of documents two or three times.
The trouble with the authorised health practitioners list
Assuming that the parties have actually been able to lodge an application for assessment of whole person impairment on the portal and thereafter an application for claims assessment, it is imperative that the parties are aware of the strict, and strictly applied rules applied to the Authorised Health Practitioners list.
Section 7.52 of the Motor Accident Injuries Act and section 8.3 of the Guidelines together with section 8.16 of the Guidelines apply here. It should be noted that the Authorised Health Practitioners List applies only to motor vehicle accident claims governed by the Motor Accident Injuries Act.
In essence, section 7.52 of the Act provides for the admissibility of evidence in certain proceedings. A health practitioner, other than the injured person’s treating health practitioner, is authorised to give evidence in proceedings for the purposes of the section by appointment, by the authority, to the list of Authorised Health Practitioners.
The list is apparently controlled by the State Insurance Regulatory Authority (SIRA) rather than the PIC. Section 8.16 of the Guidelines requires SIRA to publish a list of authorised practitioners on its website, however regrettably the Guidelines do not seem to require SIRA to maintain or update this list.
The inaccuracy of this list and confusion over whether a medical practitioner’s status was active or inactive has caused just a little chaos during the second half of 2020.
This has had significant and negative impacts because section 8.4 of the Guidelines indicates that a health practitioner is not authorised to give evidence in proceedings unless the practitioner is authorised under these Guidelines “at the time the evidence is given. For evidence given by written report, this means that the health practitioner must be authorised at the time they examine the claimant and write the report”.
It has recently become apparent to many practitioners, that from approximately July 2020 onwards, medico-legal assessments were being booked inadvertently with non-active members of the panel. The inadvertence is not due to error by the practitioner.
The devil here is in the details. It is possible for a practitioner to be active at the time the appointment is booked by the insurer or the claimant, that practitioner can then become inactive unbeknownst to any of the parties between the time the appointment is booked and the time the report is written. If the practitioner was active at the time of the appointment, but non-active at the time of writing the report, the report is inadmissible. If the practitioner is active at the time the party books the appointment, and unbeknownst to the party and indeed the doctor him or herself becomes inactive at the time the appointment takes place, that report becomes inadmissible.
Despite numerous attempts to explain to the PIC officers that it is the inaccuracy of the authorised health practitioners list that has caused the problem, these submissions run into the difficulty of the gap between administration and implementation. SIRA administers the list but PIC applies the evidentiary consequences without regard to the practical problems encountered.
The only safe way forward for the parties to ensure that their medico-legal opinions are admissible, is to seek written confirmation from the authorised health practitioner in their written report that he/she was an active member of the list at the time of the consultation and at the time of writing the report. Even that may not work because there are instances where the author of the medico-legal report has believed they were authorised when in fact SIRA/PIC has declared them inactive.
A somewhat anomalous aspect of the Personal Injury Commission Act is the concept of “federal jurisdiction”. Unlike its predecessor DRS (SIRA) which had no difficulty in determining disputes which involved parties from different states, the PIC has become constrained by its own construction.
Part 3, division 3.2 sets out the provisions relevant to the matters involving federal jurisdiction, where the PIC does not have jurisdiction, seemingly in reliance on sections 75 and 76 of the Constitution.
The rationale appears to be the case of Burns v Corbett (2018) 352 ALR 386 and the Attorney General for NSW v Gatsby (2018) 99 NSW Law Reports 1 where it was held that the state legislation which confers power on a state body will contravene the federal constitution if the body hears and determines disputes including a matter identified in section 75 or 76. As the PIC is not a court of a state but rather an administrative body, it cannot exercise federal jurisdiction.
The difficulty is, however, that the PIC has failed to define for the parties what it believes to be “an exercise of federal jurisdiction” and rather has simply categorised any motor vehicle accident claim which involves a non-NSW party (even if that party is in fact a corporation such as an insurance company) as the “potential” exercise of federal jurisdiction and therefore potentially not a matter capable of being heard by the PIC.
To date there has been no formal determination or directive from the PIC in relation to this issue which has been unhelpful and costly for insurers and claimants. The PIC is waiting for decisions of the District Court.
As things presently stand, because the PIC has not made a determination on the issue, in order to progress claims which involves a “non-NSW party”, both parties are required to take the matter to the District Court by way of summons seeking a determination from the District Court as to whether the PIC has the jurisdiction to hear the matter.
This obviously involves an extended delay to the proceedings at the PIC which effectively come to a halt while the separate District Court proceedings are heard. It also involves added expense.
The good news is that practitioners are having some success with respect to this jurisdictional issue. A recent claim taken before the District Court at the behest of the PIC’s determination that they “may not” have jurisdiction, resulted in a judgment and order of the Judicial Registrar of the District Court confirming that just because one of the parties is an interstate insurer does not automatically constitute an exercise of federal jurisdiction.
That matter has now been referred back to the PIC for further consideration.
Whilst every claim must of course be judged on its individual fact circumstances, this most recent decision should hopefully assist the PIC in making a determination regarding the exact ambit of its own jurisdictional powers, rather than forcing the parties to seek (costly) assistance from the District Court on the issue.
It goes without saying that any new piece of legislation and any newly appointed administrative body will necessarily undergo teething problems.
However, the three problematic areas highlighted above, are in many respects threatening to undermine the mission statement of the Personal Injury Commission, which is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.
It is to be hoped that these problems will be addressed in the near future so that the aims of the Commission can become a reality and the Commission becomes “accessible, professional and responsive to the needs of all of its users”.