Decision notices and disputes

Overview

The insurer is required to make all reasonable efforts to genuinely participate in teleconferences, conciliations/arbitrations and common law mediations in the Personal Injury Commission (the Commission).

This guidance outlines why genuine participation is important and how this may be achieved.

Why ‘genuine participation’ is important

The Commission resolves workers compensation disputes between workers, employers and insurers across New South Wales (amongst other matters). The Commission is an independent statutory tribunal within the state’s justice system, committed to providing a transparent and independent dispute resolution service. Resolving disputes justly and efficiently in the shortest time frame is a priority for the Commission.

Section 3 of the Personal Injury Commission Act 2020 (PIC Act) states the objects of the Act including that the Commission resolve disputes fairly, quickly, cost-effectively and with as little formality as possible.

The parties to a dispute under the Act or a damages mediation are, generally, the worker and the employer. The insurer usually represents the employer through the principles of subrogation. Procedural Direction PIC10 - Personal Injury Commission Hearings provides that all parties, including the worker and insurance claims officer, are required to attend the hearing. If the hearing venue is an in-person venue, then all parties and the insurance claims officer are expected to attend in-person. In exceptional circumstances, the Commission Division Head may excuse an in-person attendance on application by a party in writing.

The Commission has produced a number of informational videos covering what to expect at different stages of the dispute resolution process.

Genuine participation by insurers is aided by the in-person attendance of the claims officer (or other insurer representative) with knowledge of the matter and appropriate delegation to provide instructions to their legal representative.

Where there is no insurer representative present, matters can be delayed while the legal representative obtains instructions. It can be difficult and time-consuming to represent the precise nature of the proceedings over the phone, and repeated delays can prolong matters and interrupt the flow of the proceedings.

There are other benefits to insurers when claims officers attend Commission matters in-person, including:

• building claims officer capability
• allowing for better oversight of legal providers
• potentially removing the need to instruct lawyers in non-complex matters
• reducing delay in the running of matters at the Commission, and
• sending an important message to the worker that the insurer takes their claim seriously.

Conduct during Commission proceedings

The Commission’s Procedural Direction PIC1 – Conduct of parties during proceedings states that representatives appearing in Commission matters are expected to:

• in presenting their party's case, adhere to that party's instructions, prior to and during proceedings
• honestly represent the party to the proceedings. That is, not knowingly put forward any information that is untrue, or assist or encourage a party to do anything which is dishonest, or misrepresents known facts
• be knowledgeable about, and comply with, the relevant workers compensation legislation, the Commission's Rules, Guidelines, procedural directions, and policies
• behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the members, and to Commission staff
• not engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process
• not engage in direct or indirect discriminatory conduct towards or in relation to any other person, including parties or representatives.